A LEGAL ARSENAL FOR THE PHILIPPINE

ENVIRONMENT

ANTONIO A. OPOSA, JR.

Published by

CENTRAL BOOK SUPPLY, INC. 927 Quezon Avenue, Quezon City

Philippines

Philippine Copyright, 2008

By

ANTONIO A. OPOSA, JR.

All Rights Reserved

___________________________________

Series No. ______________

ISBN NO. 978-971-691-621-8

Printed by

CENTRAL BOOK SUPPLY, INC. 927 Quezon Avenue, Quezon City

Philippines

iii

TABLE OF CONTENTS

CHAPTER 1: TOUR OF THE LEGAL HORIZON

Page

GOVERNMENT AND LEGAL SYSTEM

Overview of the System of Government ................................................................ 1 Hierarchy of Legislation ........................................................................................ 1

Environmental Authorities .................................................................................... 4

RELEVANT PROVISIONS OF THE 1987 CONSTITUTION

Preamble ................................................................................................................. 5 National Territory .................................................................................................. 5

Declaration of Principles and State Policies ........................................................ 6 Right to Health (Article II, Section 15) ........................................................ 6 Right to Health is Paramount Over Presumed Economic Benefits ........... 6

(Eduardo F. Hernandez, et al. vs. National Power Corporation)

Right to Balanced Ecology (Article II, Section 16) ...................................... 8 Bill of Rights ........................................................................................................... 8

Right to Due Process of Law (Section 1) ...................................................... 8 Right to Privacy (Section 2) .......................................................................... 8

Right of Access to Information ...................................................................... 9 (Valmonte v. Belmonte)

Firepower in the Legal Arsenal .................................................................... 9 The Right to Information is Not Discretionary ........................................... 11

(Legaspi v. Civil Service Commission) National Economy and Patrimony ....................................................................... 13

Efficient Use of Resources (Section 1) .......................................................... 13 State Ownership of Natural Resources (Section 2) ..................................... 14

Lands of Public Domain and Classification (Section 3) .............................. 15 Limits of Forest Lands (Section 4) ............................................................... 15 Indigenous Cultural Communities (Section 5) ............................................ 15 Social Function of Property (Section 6) ........................................................ 16

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Social Justice and Human Rights (Article XII)..................................................... 16 Ecological Considerations in Agrarian Reform (Section 4) ......................... 16 Preferential Use of Marine Resources for Subsistence Fishermen

(Section 7) .............................................................................................. 16 Health Care and Regulation (Section 11 &12) ............................................ 17 Rights of Women (Section 14) ....................................................................... 17 Role and Rights of Peoples Organizations (Section 23 & 15) ..................... 17

Local Autonomy....................................................................................................... 17

GENERAL ENVIRONMENTAL LAWS

Philippine Environmental Policy (PD 1151) ........................................................ 17 Philippine Environment Code (PD 1152) ............................................................. 19

Environmental Impact Statement System (PD 1586) ......................................... 33 Environmentally Critical Areas and Projects (PD 2146) ..................................... 35 Polllution Control Law (PD 984) ........................................................................... 38

Pollution is a Technical Issue ....................................................................... 47 (Mead v. Argel)

Cease and Desist Order May Be Issued Without Extensive Hearing ........ 49 (Pollution Adjudication Board v. CA)

Unjust Enrichment and the Internalization of Environmental Costs ....... 50

Jurisdiction Over Pollution Case .................................................................. 51 (Technology Developers, Inc. v. CA)

Ripe for Judicial Clarification ....................................................................... 54

Philippine Environment Partnership Program (DAO 2003-14) .......................... 54

Toxic Substances and Hazardous Wastes (RA 6969) ........................................... 55

ENVIRONMENTAL ADMINISTRATION

Department of Environment and Natural Resources (EO 192) .......................... 64

CIVIL CODE PROVISIONS ON ENVIRONMENT (RA 386)

Relevance of the Civil Code .......................................................................... 83

Human Relations ........................................................................................... 83 Actionable Acts Contrary to Good Customs.................................................. 85

(Magbanua v. IAC) Nuisance ................................................................................................................. 86

Definition of Nuisance ................................................................................... 86 Public and Private Nuisance ........................................................................ 86

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Procedure for Abatement of Nuisance ......................................................... 86 Excessive Dust is a Nuisance ....................................................................... 88

(Ernesto R. Rodriguez, Jr., et al. v. IAC)

Noise Pollution ............................................................................................... 89 Damages ................................................................................................................. 89

Kinds of Damages .......................................................................................... 90 Actual of Compensatory Damages ............................................................... 90

Other Kinds of Damages ............................................................................... 93 Moral Damages is Awarded on a Case-to-Case Basis ................................. 96

(Filinvest Credit Corporation v. IAC) Only a Wrongrul Act May be Awarded Moral Damages ............................. 96

(R & B Surety & Insurance Co., Inc. v. IAC and Uson) Special Damages ............................................................................................ 96

(Daywalt v. La Corporacion de los Padres Agustinos Recoletos) Quasi-delict ............................................................................................................. 97

The Evidence Speaks for Itself ................................................................... 100 (Africa v. Caltex)

Legal Easements .................................................................................................... 101 Flowing Waters .............................................................................................. 101

Right of Way .................................................................................................. 103 Light and View .............................................................................................. 104 Drainage and Falling Waters ....................................................................... 105

Plantings and Constructions ................................................................................. 105

CHAPTER II: LAND

PROTECTED AREAS

National Integrated Protected Areas System Act (RA 7586) .............................. 111

The Strategic Environmental Plan for Palawan (RA 7611) ................................ 122 Cave Management Act (RA 9072) ......................................................................... 131 Revised Forestry Code (PD 705) ............................................................................ 136

Timber License is Not a Right ...................................................................... 175 (Felipe Ysmael Jr. & Co. Inc. v. Deputy Executive Secretary)

The Right of the Future Generations............................................................ 176 (Minors of the Philippines v. DENR, et al.)

Illegal Possession of Lumber ......................................................................... 189 (Mustang Lumber v. CA)

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Replevin in Motor Vehicles Impounded by the DENR................................. 191 (Paat v. CA)

Chainsaw Act of 2002 (RA 9175) ........................................................................... 194

PROTECTED SPECIES

Conservation and Protection of Wildlife Resources (RA 9147) ........................... 198 Protection of the Philippine Eagle (RA 6147) ....................................................... 214 Protection of Wild Flowers (RA 3983) ................................................................... 215

Prospecting of Biological and Genetic Resources (EO 247) ................................. 218 Tree Planting (PD 953) .......................................................................................... 225 List of Endangered Species (DAO 2004-15) ......................................................... 228 CITES-LISTED SPECIES (APPENDIX I) ........................................................... 230

CITES-LISTED SPECIES (APPENDIX II) .......................................................... 232

AGRICULTURE

Agriculture and Fisheries Modernization (RA 8435) ........................................... 237 Philippine Policy on Transgenics(DA-AO No. 8, S. 2002) ................................... 277 High Valued Crops (RA 7900) ............................................................................ 277 Fertilizers and Pesticides (PD 1144) ..................................................................... 283 Coconut Cutting (RA 8048) .................................................................................... 291 Animal Welfare (RA 8485) ..................................................................................... 294 Regulating the Slaughter of Carabaos (EO 626) .................................................. 298 Plant Quarantine (PD 1433) .................................................................................. 299

LAND TENURE

Property Registration Law (PD 1529) .................................................................. 306 Native Title to Land should be recognized by the Government .......................... 307

(Cario v. Insular Government)

Forest Land is Not Disposable ............................................................................... 308 (Republic of the Philippines v. Animas) (Lepanto Consolidated Mining Company v. Manuel Dumyung)

Comprehensive Agrarian Reform Program (RA 6657) ........................................ 308

Cases on Land Reform ........................................................................................... 341 (Vinzons-Magana v. Estrella) (Luz Farms v. Secretary of Agrarian Reform) (Maddumba v. GSIS) (Association of Small Landowners v. Department of Agrarian Reform)

Community Based Forest Management (EO 263) ............................................... 343

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Allocation/Tenure Instruments in Production Forest Lands .............................. 347 Permits Issued for the Utilization of Forest Resources in Production Forest

Lands .............................................................................................................. 350

Agreements and Permits Involving Forest Resources in Private Lands ............ 351

MINERALS

Small-Scale Mining Program (PD 1899) ............................................................... 352 Peoples Small-Scale Mining (RA 7076) ................................................................ 354

Philippine Mining Act (RA 7942) .......................................................................... 362 Mining Agreements May be Changed .......................................................... 393

(Miners Association of the Philippines v. Factoran) The Financial and Technical Assistance Agreement (In Mining) Is Constitutional ................................................................................................ 395

(La Bugal-Blaan Tribal Association, Inc., v. Victor O. Ramos et. al.)

ENERGY

Department of Energy (RA 7638) .......................................................................... 410 Mini-Hydroelectric Power Developers (RA 7196) ................................................ 422 Non-Conventional Energy Resources (PD 1068) .................................................. 427 Biofuels Act (RA 9367) ........................................................................................... 432

Geothermal Resources (PD 1442) .......................................................................... 440 Geothermal Watersheds (EO 223) ........................................................................ 443

The Stillborn Nuclear Power Plant .............................................................. 445 (Nuclear Free Philippine Coalition v. NPC)

Oil Deregulation (RA 8479) ................................................................................... 446 Legality of the Deregulation Policy .............................................................. 459

(Garcia v. Corona) Pilferage of Electricity (RA7832) ........................................................................... 460

Electric Power Industry Reform Act of 2001 (RA 9136) ...................................... 468 Implementing the Natural Gas Vehicle Program for Public Transport (EO

290) ................................................................................................................. 470 Energy Conservation Program (AO 126) .............................................................. 476

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CHAPTER III: AIR

CLEAN AIR ACT (RA 8749) ............................................................................................ 481 Innovations of the Clean Air Act ........................................................................... 511

Incineration Ban? ................................................................................................... 512 MMDA v. JANCOM

UNAUTHORIZED USE OF SIRENS (PD 96) ..................................................................... 513

ATMOSPHERIC ADMINISTRATION (PD 78) .................................................................... 515

NOISE STANDARDS .......................................................................................................... 521

CHAPTER IV: WATERS

THE SEA

Territorial Baselines of the Philippine Archipelago (RA 3046) ........................... 528 Exclusive Economic Zones (PD 1599) ................................................................... 533 Fisheries Code (RA 8550) ...................................................................................... 535

PROTECTED SPECIES

Dolphins (FAO No. 185, 1992) ............................................................................... 583 Whale Sharks and Manta Rays (FAO No. 193, 1998) ......................................... 584 Sea Cows (DENR AO No. 55-91) ........................................................................... 586 Seashores and Beach Protection (BP Blg. 265) .................................................... 587

Accretion by the Action of Waves ................................................................. 588 (Heirs of Emiliano Navarro v. IAC, Heirs of Pascual)

Accretion Land Belongs to the Littoral Owner ............................................ 590 (Santulan v. Executive Secretary)

Jurisdiction Over Illegal Fishing .................................................................. 596 (De Guzman v. Escalona)

Arrest Without Warrant ............................................................................... 597 (Republic v. Consino)

Legal Pressure Points ............................................................................................ 598

Warrantless Search of a Fishing Vessel ...................................................... 598 (Hizon v. CA)

Evidence of Blast-Fishing ............................................................................. 599 (People v. Vergara)

Non-Interference by Another Court ............................................................. 600 (Roldan v. Arca)

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Fishery Privileges .......................................................................................... 601 (US v. Hernandez)

MARINE PROTECTION ADMINISTRATION

Marine Pollution (PD 979) ..................................................................................... 598 Creation of the Philippine Coast Guard (RA 5173) ............................................. 602 Coast Guard Law (PD 601) .................................................................................... 605 Prevention and Control of Marine Pollution (PD 603 as amended by PD

979) ................................................................................................................. 611 Maritime Group (RA 6975) .................................................................................... 615 Maritime Industry Authority (PD 474) ................................................................ 616

FRESH WATER

Clean Water Act (RA 9275) ................................................................................... 638 Water Code (PD 1067) ............................................................................................ 663 Metro Manila Council, MMDA Resolution N. 3, S. 1996 ..................................... 683 Civil Code Provisions on Waters (RA 386) ........................................................... 685

The Spanish Law on Waters of 1866 .................................................................... 688

LAGUNA LAKE DEVELOPMENT AUTHORITY (RA 4850)

Additional Powers of LLDA (EO 927) ................................................................... 704 Primary Jurisdiction of the Laguna de Bay ......................................................... 709

(LLDA v. CA [1995])

The Ecosystem Approach in Lake Management .................................................. 711 (LLDA v. CA [1995])

Relevant Sections of the Pollution Control Law (PD 984) ................................... 713 Water Classification (DENR AO 34-90) ................................................................ 714

Effluent Regulations (Administrative Order No. 35, 1990) ................................ 724 Local Water Utilities (PD 198) .............................................................................. 737 Metropolitan Waterworks and Sewerage System (RA 6234) .............................. 762

WATERWAYS

Structures in Navigable Waterways (RA 2056) ................................................... 773 Directing Persons to Renounce Possession of Riverbanks (PD 296) ................... 774

OTHER WATER LAWS

Dumping of Wastes that Cause Rising of Riverbeds (CA 383) ............................ 776

National Water CrisisAct(RA 8041) ...................................................................... 777

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Rainwater Collection and Collection and Springs Protection (RA 6716) ........... 782 Irrigation (RA 6978) ............................................................................................... 784

CHAPTER V: HUMAN HABITAT

SOLID WASTE MANAGEMENT, SANITATION, AND HYGIENE

Solid Waste Management (RA 9003) .................................................................... 791 Ecological Solid Waste Management Act of 2001 Compliance Matrix ............... 836

A Sanitary Landfill Cannot Be Placed in a Watershed; Environmental Powers of Local Government ........................................................................ 838

(Province of Rizal, et al., Executive Secretary, et al.) Sanitation Code (PD 856) ...................................................................................... 840

LAND USE

Environment Code Provisions on Land Use (PD 1152) ....................................... 883 Urban Housing (RA 7279) ..................................................................................... 885 Housing and Land Use Regulatory Board (EO 648) ............................................ 903

Delegated Powers to the Local Government Units (EO 72) ................................ 910 Environment Related Provisions of the Building Code (PD 1096) ..................... 913

CULTURAL HERITAGE (CONSTITUTIONAL PROVISIONS)

Cultural Properties Preservation and Protection (RA 4846) .............................. 919 National Museum Law (RA 8492) ......................................................................... 924

Declaring Archaeological Reservations (PD 1109 & RA 4368) ........................... 934 National Commission for Culture and the Arts (RA 7356) ................................. 935 Declaring Certain Areas and Sites as National Sites and Shrines (PD 260) ........... 945 National Historical Commission (RA 4368) ......................................................... 946

Cultural Heritage & National Patrimony .................................................... 948 (Manila Prince Hotel v. Government Service Insurance System)

Historical Landmark Belongs to Owner, Not the Lessee ........................... 949 (Army and Navy Club v. Court of Appeals, et al.)

The Meaning of Cultural Properties ............................................................ 950 (JOYA, et al. v. PCGG, et al.)

Public Character of Historical Landmark ................................................... 951 (Manosca v. Court of Appeals)

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CIVIL CODE PROVISIONS ON HIDDEN TREASURES (RA 386)

Indigenous Peoples Rights Law (IPRA) ............................................................. 952 Constitutionality of IPRA Law ................................................................... 982

(Cruz v. NCIP)

CHAPTER VI: LOCAL GOVERNANCE

CONSTITUTIONAL PROVISIONS

Environment-Related Provisions of the Local Government Code (RA 7160) .... 987 Legal Issues ................................................................................................. 993 Shares of Local Government Units in the Proceeds of National Taxes ... 998 Can a Local Government Declare Its Territorial Jurisdiction a No-Mining Area?............................................................................................... 1012

Role of Local Governments in Environmental Protection (DAO No. 30-92) .. 1012 (Tano et al. v. Gov. Socrates, et al.)

Abatement of Public Nuisance by LGU ..................................................... 1024 (Tatel v. Municipality of Virac)

Police Powers of the Metro Manila Commission ....................................... 1026 (Sangalang v. IAC)

Metro Manila Development Authority (RA 7924) .............................................. 1027

The Present MMDA is Without Police Powers .......................................... 1034 (MMDA v. Bel-Air Village Association, Inc.)

Need for a Strong Metropolitan Government ............................................ 1035

CHAPTER VII: THE ECONOMICS OF ECOLOGY

THE PHILIPPINE AGENDA 21

Medium Term Development Plan of the Philippines (2004-2010) .................... 1048 Environmental Investment Incentives ............................................................... 1050

BUILD-OPERATE-AND-TRANSFER (BOT) LAW

Authorizing the Construction of Infrastructure Projects by the Private Sector (RA 6957) ................................................................................................... 1051 Implementing Rules of the BOT Law ................................................................. 1055 Small and Medium Enterprise (RA 6977) .......................................................... 1056

Philippine Economic Zone Authority (RA 7916) ................................................ 1058

ENVIRONMENTAL USER FEE SYSTEM IN THE LAGUNA LAKE REGION ...................... 1059 Rules and Regulations (Resolution No. 33)

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CHAPTER VIII: INTERNATIONAL COMMITMENTS

Constitutional Provisions on International Law ............................................... 1073

International Environmental Principles ............................................................ 1074

INTERNATIONAL ENVIRONMENTAL COMMITMENTS OF THE PHILIPPINES

GENERAL AGREEMENTS

UN General Assembly Resolution........................................................................ 1076 (http://www.unhchr.ch/html/menu3/b/c_natres.htm)................................. 1076

Stockholm Declaration of the United Nations Conference on the Human Environment ................................................................................................ 1077 (http://www.unep.org/dpdl/Law/PDF/Stockholm_Declaration.pdf) .......... 1077

UN General Assembly Resolution on a World Charter on Nature ................... 1078 (http://www.un.org/documents/ga/res/37/a37r007.htm) ............................ 1078

United Nations Conference on Environment and Development ....................... 1079 (http://www.un.org/documents/ga/conf151/aconf15126-1annex1.htm) ..... 1079

Agenda 21 ............................................................................................................. 1079 (http://www.un.org/esa/sustdev/documents/agenda21/english/agenda 21 chapter38.htm) ....................................................................................... 1081

THE ATMOSPHERE

Convention on the Protection of the Ozone Layer ............................................. 1081 (http://www.unep.ch/ozone/vc-text.shtml) .................................................. 1081

Protocol on Substances that Deplete the Ozone Layer ...................................... 1081 (http://www.unep.org/ozone/Montreal-Protocol/Montreal-Protoco l2000.shtml) .................................................................................................. 1082

UN Framework Convention on Climate Change ............................................... 1083 (http://unfccc.int/not_assigned/b/items/1417.php) ...................................... 1084

Kyoto Protocol to Climate Change Convention .................................................. 1084 Stockholm Convention on Persistent Organic Pollutants (POPs) .................... 1085

(http://www.pops.int/).................................................................................. 1085

THE HYDROSPHERE

The Hydrosphere Convention on the Prevention of Marine Pollution by Dumping of Wastes And Other Matter ...................................................... 1085 http://www.imo.org/Conventions/contents.asp?topic_id=258&doc_id=681#8) .............................................................................................................. 1086

United Nations Convention on the Law of the Sea ............................................ 1086 (http://www.un.org/Depts/los/convention_agreements/convention_overview_convention.htm) .................................................................................. 1090

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THE BIOSPHERE

Principles for a Global Consensus on the Management, Conservation, and Sustainable Development of All Types of Forests ..................................... 1090 (http://www.un.org/documents/ga/conf151/aconf15126-3annex3.htm) .... 1091

Convention for the Protection of the World Cultural and Natural Heritage ... 1091 (http://whc.unesco.org/world_he.htm) ........................................................ 1092

Convention on International Trade in Endangered Species of Wild Flora and Fauna .................................................................................................... 1092 (http://www.cites.org/) ................................................................................. 1093

Convention on the Conservation of Migratory Species of Wild Animals .......... 1094 (http://www.cms.int/documents/convtxt/cms_convtxt.htm) ...................... 1094

Convention on Biological Diversity...................................................................... 1094 (http://www.biodiv.org/convention/default.shtml) ..................................... 1095

ASEAN Agreement on the Conservation of Nature and Natural Re-sources .......................................................................................................... 1095 (http://www.aseansec.org/1490.htm) .......................................................... 1096

ENVIRONMENTAL THREATS

Convention on the Control of Trans-boundary Movements of Hazardous Wastes and Their Disposal .......................................................................... 1097 (http://untreaty.un.org/English/TreatyEvent2002/Basel_Conv_16.htm) ...... 1099

Treaty Banning Nuclear Weapon Tests in the Atmosphere in Outer Space, and Under Water .............................................................................. 1099 (http://lawofwar.org/space_treaty_banning_nuclear_weapons.htm)......... 1099

IAEA Code of Practice on the International Trans-boundary Movement of Radioactive Waste .................................................................................... 1100 (http://www.iaea.or.at/http://www.globelaw.com/Nukes/iaeacod.htm) ........ 1100

Convention on Civil Liability for Nuclear Damage............................................. 1100 (http://www.iaea.org/Publications/Documents/Infcircs/1996/inf500.shtml) .............................................................................................................. 1101

Protocol 1 Additional to the General Convention of August 12, 1949 and Relating to the Protection of the Victims of Armed Conflict ..................... 1102 (http://www.unhchr.ch/html/menu3/b/93.htm) ........................................... 1102

FAO Code of Conduct on the Distribution and Use of Pesticides ...................... 1102 (http://www.fao.org/) ..................................................................................... 1104

The Agreement Establishing the World Trade Organization ............................ 1104 (http://www.wto.org/english/docs_e/legal_e/04-wto_e.htm) ....................... 1104

World Bank Operational Directive 4.00 Annex A: Environmental As-sessment........................................................................................................ 1105 (http://www.worldbank.org/html/oprmanual/ods/400a.html) .................... 1106

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CHAPTER IX: MISCELLANEOUS LAWS

RESTRAINING ORDERS AND PRELIMINARY INJUNCTION

Prohibiting the Issuance of Restraining Orders and Preliminary Injunction .. 1109

In Government Projects (RA 8975).............................................................. 1109 In Natural Resources Projects (PD 605) ..................................................... 1111

HEALTH, FOOD AND DRUGS

Food and Drugs Law (RA 3720) ........................................................................... 1113 Generic Drugs Law (RA 6675).............................................................................. 1134

Occupational Health and Safety (PD 442)........................................................... 1139 Traditional and Alternative Medicine (RA 8423)................................................ 1143 Anti-Smoking Law (RA 9211)............................................................................... 1153 An Act Prohibiting the Manufacture, Importation, Distribution and Sale

of Laundry and Industrial Detergents Containing Hard Surfac-tants (RA 8970)............................................................................................. 1168

CRIMINAL LIABILITIES

Anti-Fencing Law (PD 1612) ................................................................................ 1171

Illegal Possession of Explosives (PD 1866, as amended by RA 8294)................ 1173 Inquest Procedures (DOJ Circular No. 61, 1993)................................................ 1178 Rights of Detained Persons (RA 7438)................................................................. 1184 Obstruction of Justice (PD 1829) ......................................................................... 1187

Witness Protection Program (RA 6981) ............................................................... 1190

GOVERNMENT ACCOUNTABILITY

Anti-Graft and Corrupt Practices Act (RA 3019) ................................................ 1196 Criminal Liability of the Head of Office...................................................... 1202

(Magsuci v. Sandiganbayan) Guilt Not Based on Presumption ................................................................ 1204

(Arias v. Sandiganbayan). Proof of Actual Damage................................................................................ 1205

(Llorente v. Sandiganbayan) Code of Conduct and Ethical Standards for Public Officials (RA 6713) ............ 1207 Ombudsman Act (RA 6770) .................................................................................. 1216

SAMPLE LEGAL FORMS

Letter-Complaint................................................................................................... 1232

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Complaint-Affidavit .............................................................................................. 1233 Notice to Sue for Violation of Solid Waste Management Act ............................. 1237 Affidavit-Complaint for Violation of Solid Waste Management Law ................ 1238

Complaint for the Violation of the Clean Air Act For Mobile Sources .............. 1240 Complaint for the Violation of the Clean Air Act For Stationary Sources ........ 1241 Application for Search Warrant ........................................................................... 1250 Searching Questions ............................................................................................. 1251

Search Warrant ..................................................................................................... 1253

RULES OF COURT

Depositions Pending Action.................................................................................. 1255 Depositions Pending Appeal................................................................................. 1260

Interrogatories to Parties ..................................................................................... 1262 Admission by Adverse Party ................................................................................ 1262 Production or Inspection of Things ...................................................................... 1263 Physical and Mental Examination of Persons .................................................... 1263

Refusal to Comply with Modes of Discovery ....................................................... 1265 Libel ...................................................................................................................... 1266

Privileged Communication .......................................................................... 1269 (Alonzo v. CA)

Truth as Defense ......................................................................................... 1271 (Vasquez v. CA, RTC Branch 40 and Pp)

GUIDELINES IN ADMINISTRATIVE RULE-MAKING

Procedural Requirements for the Issuance of Administrative Regulations...... 1274

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TOUR OF THE HORIZON

TOUR OF THE HORIZON

CHAPTER CONTENTS

GOVERNMENT AND LEGAL SYSTEM

Overview of the System of Government, 1 Hierarchy of Legislation, 1 Environmental Authorities, 4

RELEVANT PROVISIONS OF THE 1987 CONSTI-TUTION

Preamble, 5 National Territory, 5 Declaration of Principles and State Policies,

6 Bill of Rights, 8

Right to Due Process of Law, 8 Right to Privacy, 8 Right of Access to Information, 9

(Valmonte v. Belmonte) (Legaspi v. Civil Service Commission)

National Economy and Patrimony, 13

Efficient Use of Resources, 13 State Ownership of Natural Resources,

14 Lands of Public Domain and Classifica-

tion, 15 Limits of Forest Lands,15 Indigenous Cultural Communities, 15 Social Function of Property, 16

Social Justice and Human Rights, 16

Ecological Considerations in Agrarian Reform, 16

Preferential Use of Marine Resources for Subsistence Fishermen, 16

Health Care and Regulation, 17 Rights of Women, 17 Role and Rights of Peoples Organiza-

tions, 17

Local Autonomy, 17

GENERAL ENVIRONMENTAL LAWS

Philippine Environmental Policy, 17 Philippine Environment Code, 19 Environmental Impact Statement System,

33 Environmentally Critical Areas and Pro-

jects, 35 Polllution Control Law, 38

(Mead v. Argel) (Pollution Adjudication Board v. CA) (Technology Developers, Inc. v. CA)

Toxic Substances and Hazardous Wastes, 55

ENVIRONMENTAL ADMINISTRATION

Department of Environment and Natural Resources, 64

CIVIL CODE PROVISIONS ON ENVIRONMENT

Human Relations, 83 (Magbanua v. IAC)

Nuisance, 86 (Ernesto R. Rodriguez, Jr., et al. v.

IAC) Damages, 89

Kinds of Damages, 90 (Filinvest Credit Corporation v. IAC) (R & B Surety & Insurance Co., Inc.

v. IAC and Uson) (Daywalt v. La Corporacion de los

Padres Agustinos Recoletos) Quasi-delict, 97

(Africa v. Caltex) Legal Easements, 101

Flowing Waters, 101 Right of Way, 103 Light and View, 104 Drainage and Falling Waters, 105

Plantings and Constructions, 105

CHAPTER 1: TOUR OF THE HORIZON

Government and Legal System

Overview of the System of Government

The Philippines is a republic and is governed by a Constitution enacted in Febru-ary 1987.

The Executive Branch of government is led by a President, who also serves as the head of state. The President is elected by popular vote, without reelection, to a six-year term of office. The President appoints a cabinet.

The bicameral legislative branch consists of the Senate and the House of Representatives. The Senate consists of twenty-four members, serving six-year terms while the House of Representa-tives consists of a maximum of 250 members, each serving a three-year term of office.

The judicial branch is headed by the Supreme Court, which is composed of a chief justice and fourteen associate justices, all whom are appointed by the countrys President. Other judicial bod-ies include a court of appeals and, trial courts of the first instance distributed by regions, cities, and municipalities.

Hierarchy of Legislation

At the national level, there are a number of different legal instruments, each of which is briefly discussed here.

Law

A law passed by Congress is referred to as a Republic Act (R.A.). The presentation of a bill is initiated either by any, or by both of the legislative chambers (House or Sen-

1

"Nature is an endless combination and repeti-tion of a very few laws. Ralph Waldo Emerson (A. Oposa)

TOUR OF THE HORIZON

2

ate) or by the executive. The legislative bill is then studied and heard by the committees concerned (e.g., Senate Committee on Environment) which conducts an inquiry in aid of legislation to hear out the concerns and views on the bill. Thereafter, the bill is ap-proved by the entire body.

When both chambers have approved the bill, the same is referred to a Bicameral Conference Committee to reconcile any conflicting provisions. After this stage, it is referred back to the respective chambers (House and Senate) for ratification. For final-ity, the bill is forwarded to the President for approval or veto. The bill becomes law after it is signed by the President and published. A two-thirds vote of Congress is needed to override a veto of the President. From 1988 to the present, law making in the Philip-pines has been by act of Congress.

Presidential Decree

During the period known as the Martial Law Years, (1972-1986), legislation was made by Presidential fiat of then President Ferdinand Marcos. Many of the environment, health, and safety laws were passed during this period. They continue to be valid unless otherwise amended or repealed by a subsequent law passed by an act of Congress. Examples of the Presidential Decrees are the Forestry Code of the Philippines (P.D. 705) or the Pollution Control Law (P.D. 984). To this date, they continue to be valid in the absence of a subsequent law.

Executive Order

An Executive Order (E.O.) is a presidential act providing for rules of a general or permanent character in the implementation or execution of constitutional or statutory powers.

Administrative Order

An administrative order is an act of the Cabinet/Department Secretary which re-lates to particular aspects of governmental operations pursuant to his/her duties as

Like water, be gentle and strong. Be gentle enough to follow the natural paths of the earth, and strong enough to rise up and reshape the world. Brenda Peterson (A. Oposa)

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administrative head of government. For example, the implementing rules of the Clean Air Act or the Toxic and Hazardous Wastes Act are in the form of a Department Admin-istrative Order (DAO). In the Coast Guard, the implementing rules are called Memo-randum Circulars. These administrative orders/circulars have to be published in the Official Gazette or in newspapers for general circulation for it to be effective. Another requirement is that these be filed with the Office of the National Register in the Uni-versity of the Philippines Law Center.

Proclamation

A proclamation is an act of the President fixing a date or declaring a status or con-dition of public moment or interest. An example of this is a proclamation declaring June as the Environment Month, or the proclamation of a working day as a holiday.

Memorandum Order

A memorandum order is a presidential act on matters of ad-ministrative detail which only con-cerns a particular office or an office of government. A memorandum order by the President directing the all-out enforcement of the laws on forestry is an example.

Implementing Rule and Regula-tion (IRR)

The term implementing rules and regulations (IRR) is a generic term referring to the detailed legal procedures and processes designed to implement the law. This is usu-ally done by way of a Department Administrative Order (DAO) issued by the Department mandated to im-plement the law.

Ordinance

An ordinance is a local law passed by the local legislative body of the province, city, municipality, or barangay (vil-lage) and approved by the chief executive officer [provincial governor, city or municipal mayor, or barangay leader (also called barangay captain or Chairman) respectively. It must not be inconsistent with a national law. Thus, an ordinance cannot provide for penalties lower than what is provided by the national law.

In nature there are neither rewards nor punish-mentsthere are only consequences. Robert G. Ingersoll (George Tapan)

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Environmental Authorities

The principal agency tasked with the mandate for environmental protection is the Department of Environment and Natural Resources (DENR). It was created pursuant to Executive Order No. 192 (1987) which fused the functions of the Ministry of Natural Resources (MNR), the National Pollution Control Commission (NPCC), and the Na-tional Environmental Protection Council (NEPC). All references to these agencies in the texts of the laws contained in this book (e.g., Environment Code, Pollution Control Law) are deemed to refer to the DENR. Particularly, the DENR is responsible for:

1. The conservation, management, development, and proper use of the countrys en-vironmental and natural resources, specifically forest and grazing lands, mineral resources, including those in reservation and watershed areas, and lands of the public domain;

2. The preservation of cultural and natural heritage through wildlife conserva-tion and segregation of national parks and other protected areas;

3. The promulgation and enforcement of rules and regulations for the control of water, air, and land pollution;

4. The promulgation and enforcement of ambient and effluent standards for wa-ter and air quality including the allowable levels of other pollutants and radiation;

5. The promulgation of policies, rules, and regulations for the conservation of the countrys genetic resources, biological diversity, and endangered habitats.

The DENR is headed by the Cabinet Secretary, a position appointed by the Presi-dent, and assisted by three undersecretaries. Below them are the bureaus of: Mines and Geosciences, Forest Management, Land Management, Environmental Management,

Nature is the book of which God is the Author. Harvey (G. Tapan)

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and Ecosystems Research. The line functions and regulatory powers of the DENR are performed by the regional offices distributed throughout the thirteen administrative regions of the country. The Autonomous Region of Muslim Mindanao (ARMM) has its own version of the DENR.

Attached to the DENR is the Natural Resources Development Corporation (NRDC), a government-owned corporation responsible for promoting natural resource development through investment/involvement in innovative technologies and ventures involving forest management. Other agencies attached to the DENR include the Na-tional Mapping and Resource Information Authority (NAMRIA) and the Laguna Lake Development Authority (LLDA). The NAMRIA serves as the central mapping authority of the government. It also conducts research on remote-sensing technologies, satellite imagery, and similar technologies. The LLDA is a government-owned corporation which serves as the environmental regulatory authority for the Laguna Lake region.

A line bureau within the DENR is the Environmental Management Bureau (EMB), tasked with the principal responsibility of implementing the countrys environ-mental laws. It also serves as the secretariat of the Pollution Adjudication Board (PAB), which hears and decides pollution cases.

RELEVANT PROVISIONS OF THE 1987 CONSTITUTION

The following provisions in the 1987 Constitution directly or indirectly affect natu-ral resources and environment.

Preamble

We, the sovereign Filipino people, imploring the aid of Almighty God, in or-der to build a just and humane society and establish a government that shall embody our ideals and aspirations, promote the common good, conserve and de-velop our patrimony, and secure to ourselves and our posterity the blessings of independence and democracy under the rule of law and a regime of truth, justice, freedom, love, equality, and peace, do ordain and promulgate this Constitution.

National Territory

Article I

The national territory comprises the Philippine archipelago, with all the islands and waters embraced therein, and all other territories over which the Philippines has sover-eignty or jurisdiction, consisting of its terrestrial, fluvial, and aerial domains, including its territorial sea, the seabed, the subsoil, the insular shelves, and other submarine areas. The waters around, between, and connecting the islands of the archipelago, regardless of their breadth and dimensions, form part of the internal waters of the Philippines.

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Declaration of Principles and State Policies

Article II

State Policies

Right to Health

SEC. 15. The State shall protect and promote the right to health of the people and to instill health consciousness among them.1

Right to Health is Paramount Over Presumed Economic Benefits

Facts: In 1996, NAPOCOR began the construction of 29 decagon-shaped steel poles or towers to support overhead high tension cables in connection with its 230 Kilo-volt Sucat-Araneta-Balintawak Power Transmission Project. Said transmission lines passes through Sergio Osmea, Sr. Highway (South Superhighway), the perimeter of Fort Bonifacio and Dasmarias Village proximate to Tamarind Road, where petitioners homes are.

Petitioners got hold of published articles and studies linking the the incidence of a fecund of illnesses to exposure to electromagnetic fields. These illnesses range from cancer to leukemia.

In 2000, petitioners sought the issuance of a preliminary injunction on the ground that the NAPOCOR Project impinged on their right to health as enshrined in Article II, Section 15 of the 1987 Constitution, which provides:

Sec. 15. The State shall protect and promote the right to health of the people and instill consciousness among them.

The trial court temporarily restrained the respondent from energizing and trans-mitting high voltage electric current through the said project.

NAPOCOR filed a Petition for Certiorari with the Court of Appeals. Alluding to Presidential Decree No. 1818 (1981), "Prohibiting Courts from Issuing Restraining Or-ders or Preliminary Injunctions in Cases Involving Infrastructure and Natural Resource Development Projects of, and Public Utilities Operated by, the Government, particularly Sec. 1, NAPOCOR stalwartly sought the dismissal of the case on the ground of lack jurisdiction.

_______________________

1 The case of LLDA v. CA, 231 SCRA 292 (1994), states that the right to health is a funda-mental human right.

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Presidential Decree No. 1818 provides:

Section 1. No Court in the Philippines shall have jurisdiction to issue any re-straining order, preliminary injunction or preliminary mandatory injunction in any case, dispute, or controversy involving an infrastructure project, or a mining, fishery, forest or other natural resource development project of the government, or any public utility operated by the government, including among other public utilities for transport of the goods or commodities, stevedoring and arrastre contracts, to prohibit any person or persons, entity or government official from proceeding with or continuing the execu-tion or implementation of any such project, or the operation of such public utility or pur-suing any lawful activity necessary for such execution, implementation or operation.

In the meantime, the trial court ordered the issuance of a writ of preliminary in-junction against NAPOCOR. It was of the view that Presidential Decree No. 1818 and jurisprudence proscribing injunctions against infrastructure projects do not find appli-cation in the case at bar because of the health risks involved.

The Court of Appeals reversed the trial courts order. Hence, this petition.

Issue: Whether or not the trial court has jurisdiction to issue a TRO and a pre-liminary injunction even if the petitioners right to health is at stake?

Held/Ratio: YES, the trial court has jurisdiction. The issue of petitioners right to health is a veritable question of law thus removing the case from the protective mantle of Presidential Decree No. 1818.

Moreover, the issuance by the trial court of a preliminary injunction finds legal support in Section 3 of Rule 58 of the Rules of Court. For a writ of preliminary injunc-tion to be issued, the Rules do not require that the act complained of be in violation of the rights of the applicant. Indeed, what the Rules require is that the act complained of be probably in violation of the rights of the applicant. In the case at bar, there is ade-quate evidence on record to justify the conclusion that the project of NAPOCOR proba-bly imperils the health and safety of the petitioners so as to justify the issuance by the trial court of a writ of preliminary injunction.

Petitioners adduced in evidence copies of studies linking the incidence of illnesses such as cancer and leukemia to exposure to electromagnetic fields.

Despite the parties conflicting results of studies made on the issue, the possibility that the exposure to electromagnetic radiation causes cancer and other disorders is still, indeed, within the realm of scientific scale of probability.

In sum, what Presidential Decree No. 1818 aims to avert is the untimely frustra-tion of government infrastructure projects, particularly by provisional remedies, to the detriment of the greater good by disrupting the pursuit of essential government projects or frustrate the economic development effort of the nation. Presidential Decree No.

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1818, however, was not meant to be a blanket prohibition so as to disregard the funda mental right to health, safety and well-being of a community guaranteed by the funda-mental law of the land.

In the present case, the far-reaching irreversible effects to human safety should be the primordial concerns over presumed economic benefits per se as alleged by the NAPOCOR.

Eduardo F. Hernandez, et al. vs. National Power Corporation GR No. 145328, March 23, 2006

Right to a Balanced Ecology

SEC. 16. The State shall protect and advance the right of the people to a bal-anced and healthful ecology in accord with the rhythm and harmony of nature.2

Bill of Rights

Article III

Right to Due Process of Law

SECTION 1. No person shall be deprived of life, liberty, or prop-erty without due process of law, nor shall any person be denied the equal protection of the laws.

Right to Privacy

SEC. 2. The right of the peo-ple to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any pur-pose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complain-ant and the witnesses he may pro-_______________________

2 The case of Minors Oposa v. Factoran, 224 SCRA 792 (1993), states that the right to a bal-anced ecology is an enforceable legal right.

Sunrise in Bantayan Island. (A. Oposa)

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duce, and particularly describing the place to be searched and the persons or things to be seized.

Right of Access to Information

SEC. 7. The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law.

Firepower in the Legal Arsenal

The constitutional right to information is a very powerful tool in the game and le-gal arsenal of environmental advocacy. For example, it can be used to legally compel the Government to release the relevant environmental data.

Thus, it is our Constitutional right to demand that Government release, for exam-ple, data on the environmental performance of a certain company. Of course, it is also a legal duty of the polluting company to submit truthful and accurate data to the Gov-ernment, in fact, in pain of perjury. All together, the stimulus of transparency makes for better environmental governance.

Transparency is a most effective tool to deter environmental mischief. A company which knows, for example, that its pollution data can be made public will do its best to clean up. A logging or mining company which knows that its environmental records can be opened for public scrutiny, will also do its best to comply with the environmental standards. In the U.S. jurisdiction, they belatedly realized the power of the Community Right to Know provisions of their laws.

In many societies, especially in Asia, social sanction has long been held as the highest form of punishment, more painful than ordinary legal sanction. In this part, it is quite quaintly called the loss of face.

Right of Access to Information

The right to information on matters of public concern is applicable and enforceable against a government-owned corporation. Said corporation cannot invoke the right to privacy, a right available only to individuals.

Facts: Valmonte, together with other members of the media, sought to compel the GSIS:

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Isla Encantada, Bantayan Island, Cebu. (A. Oposa)

a. to furnish them with the list of names of Batasan members belonging to UNIDO and PDP-Laban who were able to secure clean loans immediately before the February 7 election through the intercession of Imelda Marcos;

b. to furnish them with certified true copies of the documents evidencing their respective loans; and

c. to allow them access to public records for the subject information. In reply, GSIS asserts confidentiality of its relationship with those who obtain loans.

Issue: Can Valmonte, et al., compel GSIS to reveal the desired information?

Held: Yes. Petitioners have the right to access to the public docu-ments. The public nature of the loan-able funds of the GSIS and the public office held by the alleged borrowers make the information sought a matter of public concern. The GSIS cannot plead privacy because privacy may be raised only by the party concerned, in this case, the borrowers. But consider-ing the public office of the borrowers, they still cannot plead privacy.

The right to privacy belongs to the individual and must be invoked by the individual. A public agency like the GSIS cannot invoke said right. A corporation has no right to privacy since the entire basis of the right to privacy is an inquiry to the feelings and sensibilities of the party and a corporation would have no such ground for relief.

Government, whether carrying out its sovereign attributes or running some busi-ness, discharges the same function of service to the people. Moreover, it was clearly the intent of the Constitutional Commission to include government-owned and controlled corporations in the scope of the right to information.

But this does not mean that GSIS must furnish the petitioners with the list of the names requested. The constitutional right gives them access to official records. But the Constitution does not accord them the right to compel custodians of official records to prepare lists, abstracts, summaries, and the like in their desire to acquire informa-tion on matters of public concern.

Valmonte v. Belmonte 170 SCRA 256, G. R. No. 74930 February 13, 1989

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The Right to Information is Not Discretionary

Information of public concern is a demandable right. Government officials have no discretion whether or not to release the information. They can only prescribe the man-ner by which the right can be exercised, such as, for example, that it can be secured only during office hours. However, this right admits of exceptions such as when the information requested is a matter of national security.

Facts: Attorney Valentin L. Legaspi of Cebu City requested for information from the Civil Service Commission. He wanted to know if two persons who were appointed as sanitarians in the Health Department of the city were civil service eligible. When the Commission denied his request, he filed a petition before the Supreme Court to compel the Commission to disclose the information he sought.

Mr. Legaspi based his demand on Sec. 7, Article III of the 1987 Constitution which describes a persons constitutional right to information on matters of public concern.

The Commission defended itself by saying that Mr. Legaspi had no right to ask the Court to compel the Commission to give him the information he seeks. Moreover, the Commission asserted that it had the discretion on whether or not it should furnish a person with the information requested.

Issue: Does Mr. Legaspi have the right to obtain the information he seeks? Held: Yes. The right of the people to have information on matters of public interest

is, by its very nature, a public right. In Taada v.Tuvera (136 SCRA 27), it was said that when the question is one of public right and the object of the mandamus is to procure the enforcement of a public duty, the people are regarded as the real party in interest and the realtor at whose instigation the proceedings are instituted need not show that he has any legal or special interest in the result, it being sufficient to show that he is a citizen and as such interested in the execution of the laws.

From the foregoing, it becomes apparent that when a mandamus proceeding3 in-volves the assertion of a public right, the requirement of personal interest is satisfied by the mere fact that the petitioner is a citizen, and therefore, part of the general public which possesses the right.

Issue: Can the respondent exercise its discretion to refuse Mr. Legaspi access to such information?

Held: No. According to the Supreme Court, For every right of the people recog-nized as fundamental, there lies a corresponding duty on the part of those who govern to respect and protect that right. In recognizing the peoples right to be informed . . . the New Charter expressly mandates the duty of the State and its agents to afford ac-cess to official records, documents, papers, and in addition, government research data _______________________

3 Mandamus is a technical term used to refer to the legal action to compel a government of-fice to perform an act required by law.

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used as basis for policy development, subject to such limitations as may be provided by law (Sec. 7, Article III, 1987 Constitution). The guarantee has been further enhanced . . . with the adoption of a policy of full public disclosure, this time subject to reasonable conditions prescribed by law, in Sec. 28, Article II thereof, to wit:

Subject to reasonable conditions prescribed by law, the State adopts or implements a policy of full public disclosure of all its transactions involving public interest.

It is clear from the foregoing pronouncements of this Court (in the cited case of Taada and in Subido v.Ozaeta, 80 Phil. 383) that government agencies are without discretion to refuse disclosure of, or access to, information of public concern. However, this is not to lose sight of the reasonable regulations which may be imposed by said agencies in custody of public records on the manner in which the right to information may be exercised by the public. In the Subido case, We (Supreme Court) recognized the authority of the Register of Deeds to regulate the manner in which persons desiring to do so may inspect, examine, or copy records relating to registered lands. However, the regulations which the Register of Deeds may promulgate are confined to:

. . . prescribing the manner and hours of examination to the end that damage to or loss of the records may be avoided, that undue interference with the duties of the custo-dian of the books and documents and other employees may be prevented, that the right of other persons entitled to make inspection may be insured. . . .

We were emphatic in our statement that the authority to regulate the manner of examining public records does not carry with it the power to prohibit. A distinction has to be made between the discretion to refuse outright the disclosure of or access to a particular information and the authority to regulate the manner in which the access is to be afforded.

Issue: Is there any limitation on the constitutional right to information?

Held: Yes. The decisive question on the propriety of the issuance of the writ of mandamus in this case is whether the information sought by the petitioner is within the ambit of the constitutional guarantee. (T)he constitutional guarantee to informa-tion on matters of public concern is not absolute. It is still subject to limitations as may be provided by law (Sec. 7, Article III). Certain types of information may not be available for public scrutiny, such as those affecting national security. Two requisites must first be fulfilled in order for the right to be enforceable:

a. The information sought is of public concern or one that involves public inter-est, and,

b. It is not exempted by law from the operation of the constitutional guarantee.

With regard to the first, it is for the courts to decide on a case-to-case basis whether an information sought is of public interest or concern. In this case, the infor-mation the petitioner sought to access is clearly of public interest. It is the legitimate concern of citizens to ensure that government positions requiring civil service eligibility

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are occupied only by persons who are eligible. With regard to the second requisite, the information sought must not be among the species exempted by law from the operation of the constitutional guarantee. Here, the petitioners right to know is upheld because there is no law prohibiting such information from being disclosed. It is in fact the case that civil service examination results are released to the public. There is therefore no reason to withhold it from the petitioner.

Legaspi v. Civil Service Commission 150 SCRA 530, G. R. No. 72119 May 29, 1987

National Economy and Patrimony

Article XII

Efficient Use of Resources

SECTION 1. The goals of the national economy are a more equitable distribu-tion of opportunities, income, and wealth; a sustained increase in the amount of goods and services pro-duced by the nation for the benefit of the people; and an expanding pro-ductivity as the key to raising the quality of life for all, especially the underprivileged.

The State shall promote indus-trialization and full employment based on sound agricultural development and agrarian reform, through industries that make full and efficient use of human and natural resources, and which are competitive in both domestic and foreign markets. However, the State shall protect Filipino enterprises against unfair foreign competition and trade practices.

In the pursuit of these goals, all sectors of the economy and all re-gions of the country shall be given optimum opportunity to develop. Private enterprises, including cor-porations, cooperatives, and similar collective organizations, shall be en-couraged to broaden the base of their ownership.

Through primrose tufts, in that sweet bower, The periwinkle traild its wreaths; And tis my faith that every flower Enjoys the air it breathes. William Wordsworth (G. Tapan, Natural Heritage)

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State Ownership of Natural Resources

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. The exploration, development, and utilization of natural resources shall be under the full control and supervision of the State. The State may directly undertake such activities, or it may enter into co-production, joint venture, or production-sharing agreements with Filipino citizens or corporation or associations at least sixty percent of whose capital is owned by such citizens. Such agreements may be for a period not exceeding twenty-five years, renewable for not more than twenty-five years, and under such terms and conditions as may be provided by law. In cases of water rights for irrigation, water supply, fisheries, or industrial uses other than the development of water power, beneficial use may be the measure and limit of the grant.

The State shall protect the na-tions marine wealth in its archi-pelagic waters, territorial sea, and exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens.

The Congress may, by law, al-low small-scale utilization of natural resources by Filipino citizens, as well as cooperative fish farming, with priority to subsistence fisher-men and fish workers in rivers, lakes, bays, and lagoons.

The President may enter into agreements with foreign-owned cor-porations involving either technical or financial assistance for large-scale exploration, development, and utilization of minerals, petroleum, and other mineral oils according to the general terms and conditions provided by law, based on real contributions to the economic growth and general welfare of the country. In such agreements, the State shall promote the development and use of local scientific and technical resources.

The President shall notify the Congress of every contract entered into in accor-dance with this provision, within thirty days from its execution.

If there is magic on this planet, it is contained in water. Loran Eisely, The Immense Jour-ney, 1957 (G. Tapan, Natural Heritage)

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Lands of Public Domain and Classification

SEC. 3. Lands of the public domain are classified into agricultural, forest or tim-ber, mineral lands, and national parks. Agricultural lands of the public domain may be further classified by law according to the uses to which they may be devoted. Alienable lands of the public domain shall be limited to agricultural lands. Private corporations or associations may not hold such alienable lands of the public domain except by lease, for a period not exceeding twenty-five years, renewable for not more than twenty-five years, and not to exceed one thousand hectares in area. Citizens of the Philippines may lease not more than five hundred hectares, or acquire not more than twelve hectares thereof by purchase, homestead, or grant.

Taking into account the requirements of conservation, ecology, and development, and subject to the requirements of agrarian reform, Congress shall determine, by law, the size of lands of the public domain which may be acquired, developed, held, or leased and in the conditions therefore.

Limits of Forest Lands and National Parks

SEC. 4. The Congress shall, as soon as possible, determine by law the specific limits of forest lands and national parks, marking clearly their boundaries on the ground. Thereafter, such forest lands and national parks shall be conserved and may not be in-creased nor diminished, except by law. The Congress shall provide, for such period as it may deter-mine, measures to prohibit logging in endangered forest and water-shed areas.

Indigenous Cultural Communi-ties

SEC. 5. The State, subject to the provisions of this Constitution and national de-velopment policies and programs, shall protect the rights of indigenous cultural communi-ties to their ancestral lands to ensure their economic, social, and cultural well-being.

Before the forests can be protected, their boundaries must be clearly identified and marked on the ground with clear and visible boundary markers. (Neal Oshima, Forest)

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The Congress may provide for the applicability of customary laws governing prop-erty rights or relations in determining the ownership and extent of ancestral domain.

Social Function of Property

SEC. 6. The use of property bears a social function and all economic agents shall contribute to the common good. Individuals and private groups, including corporations, cooperatives, and similar collective organizations, shall have the right to own, establish, and operate economic enterprises, subject to the duty of the State to promote distributive justice and to intervene when the common good so demands.

Social Justice and Human Rights

Article XIII

Ecological Considerations in Agra-rian Reform

SEC. 4. The State shall, by law, undertake an agrarian reform program founded on the right of farmers and regular farm workers, who are landless, to own directly or collectively the lands they till or, in the case of other farm workers, to receive a just share of the fruits thereof. To this end, the State shall encourage and undertake the just distribution of all agricultural lands, subject to such priorities and reasonable retention limits as the Congress may prescribe, taking into account ecological, developmental, or equity considerations, and subject to the payment of just compensation. In determining retention limits, the State shall respect the rights of small landowners. The State shall further provide incentives for voluntary land-sharing.

Preferential Use of Marine Resources for Subsistence Fishermen

SEC. 7. The State shall protect the rights of subsistence fishermen, especially of local communities, to the preferential use of the communal marine and fishing re-sources, both inland and offshore. It shall provide support to such fishermen through appropriate technology and research, adequate financial, production, and marketing assistance, and other services. The State shall also protect, develop, and conserve such marine resources. The protection shall extend to offshore fishing grounds of subsistence

The fishing was good; it was the catching that was bad. A.K. Best (G. Tapan, Natural Heritage)

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fishermen against foreign intrusion. Fish workers shall receive a just share from their labor in the utilization of marine and fishing resources.

Health Care and Regulation

SEC. 11. The State shall adopt an integrated and comprehensive approach to health development which shall endeavor to make essential goods, health and other social services available to all the people at affordable cost. There shall be priority for the needs of the underprivileged, sick, elderly, disabled, women, and children. The State shall endeavor to provide free medical care to paupers.

SEC. 12. The State shall establish and maintain an effective food and drug regu-latory system and undertake appropriate health manpower development and research, responsive to the countrys health needs and problems.

Rights of Women

SEC. 14. The State shall protect working women by providing safe and healthful working conditions, taking into account their maternal functions, and such facilities and opportunities that will enhance their welfare and enable them to realize their full potential in the service of the nation.

Role and Rights of Peoples Organizations

SEC. 23. The State shall encourage nongovernmental, community-based, or sec-toral organizations that promote the welfare of the nation (Article II).

SEC. 15. The State shall respect the role of the independent peoples organiza-tions to enable the people to pursue and protect, within the democratic framework, their legitimate and collective interests and aspirations through peaceful and lawful means.

Peoples organizations are bona fide associations of citizens with demonstrated ca-pacity to promote the public interest and with identifiable leadership, membership, and structure.

Local Autonomy

Article X

SEC. 25. The State shall ensure the autonomy of local governments (Article II)

General Environmental Laws

Philippine Environmental Policy (Presidential Decree 1151)

Whereas, the individual and, at times, conflicting demands of population growth, urbanization, industrial expansion, rapid natural resources utilization, and increasing

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Sing, sweetness to the last palpitation of the evening and the Breeze. St. John Perse (G. Tapan, Natural Heritage)

technological advances have resulted in a piece-meal approach concept of environmental protection;

Whereas, such tunnel-vision concept is not conducive to the attainment of an ideal environmental situation where man and nature can thrive in harmony with one an-other; and

Whereas, there is now an urgent need to formulate an intensive, integrated pro-gram of environmental protection that will bring about a concerted effort towards the protection of the entire spectrum of the environment through a requirement of envi-ronmental impact assessments and statements:

Now, Therefore, I, Ferdinand E. Marcos, President of the Philippines, by virtue of the powers vested in me by the Constitution, do hereby order and decree:

SECTION 1. PolicyIt is hereby declared a continuing 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 ful-fill the social, economic and other re-quirements of present and future generations of Filipinos, and (c) to ensure the attainment of an environ-mental quality that is conducive to a life of dignity and well-being.

SEC. 2. GoalIn pursuing this policy, it shall be the respon-sibility of the government, in coopera-tion with concerned private organiza-tions and entities, to use all practi-cable means, consistent with other essential considerations of national policy, in promoting the general wel-fare to the end that the nation may (a) recognize, discharge, and fulfill the responsibilities of each generation as trustee and guardian of the en-vironment for succeeding generations,

(b) assure the people of a safe, decent, healthful, productive, and aesthetic environment, (c) encourage the widest exploitation of the environment without degrading it, or endan-gering human life, health, and safety or creating conditions adverse to agriculture, com-merce, and industry, (d) preserve important historic and cultural aspects of the Philippine heritage, (e) attain a rational and orderly balance between population and resource use, and (f) improve the utilization of renewable and nonrenewable resources.

SEC. 3. Right to a Healthy EnvironmentIn furtherance of these goals and poli-cies, the government recognizes the right of the people to a healthful environment. It

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shall be the duty and responsibility of each individual to contribute to the preservation and enhancement of the Philippine environment.

SEC. 4. Environmental Impact StatementsPursuant to the above enunciated policies and goals, all agencies and instrumentalities of the national government, in-cluding government-owned or controlled corporations, as well as private corporations firms and entities shall prepare, file, and include in every action, project, or undertak-ing which significantly affects the quality of the environment a detailed statement on:

a. the environmental impact of the proposed action, project, or undertaking; b. any adverse environmental effect which cannot be avoided should the proposal

be implemented;

c. alternative to the proposed action; d. a determination that the short-term uses of the resources of the environment

are consistent with the maintenance and enhancement of the long-term productivity of the same; and

e. whenever a proposal involves the use of depletable or nonrenewable resources, a finding must be made that such use and commitment are warranted.

Before an environmental impact statement is issued by a lead agency, all agencies having jurisdiction over, or special expertise on, the subject matter involved shall com-ment on the draft environmental impact statement made by the lead agency within thirty (30) days from receipt of the same.

SEC. 5. Agency GuidelinesThe different agencies charged with environmental protection as enumerated in Letter of Instruction No. 422 shall, within sixty (60) days from the effectivity of this Decree, submit to the National Environmental Protection Council (NEPC),4 their respective guidelines, rules, and regulations to carry out the provisions of Section 4 hereof on environmental impact assessments and statements.

SEC. 6. Repealing ClauseAll acts, presidential decrees, executive orders, rules, and regulations or parts thereof which are inconsistent with the provisions of this De-cree are hereby repealed, amended, or modified accordingly.

SEC. 7. EffectivityThis Decree shall take effect immediately.

Done in the City of Manila this 6th day of June, 1977.

Philippine Environment Code

(Presidential Decree 1152)

Whereas, the broad spectrum of environment has become a matter of vital concern to the government;

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4 All reference to the NEPC (or council) and the National Pollution Control Commission (NPCC) shall mean to refer to the DENR.

TOUR OF THE HORIZON

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Whereas, the national leadership has taken a step towards this direction by creating the National Environmental Protection Council under Presidential Decree No. 1121;5

Whereas, it is necessary that the creation of the Council be implemented with the launch-ing of a comprehensive program of environmental protection and management;

Whereas, such a program can assume tangible and mea-ningful significance only by es-tablishing specific environment management policies and pres-cribing environment quality standards in a Philippine Envi-ronment Code:

Now, Therefore, I, Ferdinand E. Marcos, President of the Republic of the Philippines, by virtue of the powers vested in me by the Constitution, do here-by order and decree:

SECTION 1. Short TitleThis Decree shall be known and cited as the Philippine Environment Code.

Title IAir Quality Management

Note: The provisions on air quality management have been revised by the Clean Air Act of 1999 (R. A. No. 8749. Please see Chapter 3).

Title IIWater Quality Management

Note: The provisions on Water Quality have been revised by the Clean Water Act (Republic Act ____, Please see Chapter 4) . The provisions quoted hereunder, esp. Sec. 17 and 20, were creatively used to compel the various government agencies to clean up Manila Bay. Please news article below. However, the case is still under litigation with the Government filing a Petiton for Review before the Supreme Court from the Decision of the Court of Appeals.

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5 Abolished by Sec. 16, E.O. No. 192, s. 1987.

We are surrounded by a rich and fertile mystery. Henry David Thoreau (A. Oposa)

PHILIPPINE ENVIRONMENT CODE

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CA RULING COMPELS GOVT. TO CLEAN UP MANILA BAY

MANILA, October 13, 2005 (STAR) By Michael PunongbayanFifteen government agencies are now compelled to save the countrys most important coastline following a landmark decision by the Court of Appeals (CA) to favor Manila Bay area residents, who filed a class suit against the national government in 1999.

The appellate court, in a resolution dated Sept. 28, 2005, cracked the whip on the Metro-politan Waterworks and Sewerage Systems, the Local Water Utilities Administration, the Philippine Ports Authority and 12 other national government offices for being remiss in their obligation to clean up, rehabilitate, and protect Manila Bay, which has been downgraded into a virtual body of water filled with fecal coliform.

The order gives the 15 agencies and all concerned local government units six months to act.

Also included in the suit were the Department of Environment and Natural Resources, Department of Agriculture, Bureau of Fisheries and Aquatic Resources, Philippine Coast Guard, Metropolitan Manila Development Authority, Philippine National Police Maritime Group, Department of Budget and Management, Department of Education and Department of the Interior and Local Government.

The CA specifically tasked government agencies to come up with a concerted plan of action to clean up and rehabilitate the Manila Bay and its waterways to restore it to Class SB classification (bathing standard) and to revitalize its marine life.

CA Second Division Associate Judge Eliezer de Los Santos, as concurred by Associate Judges Eugenio Labitoria and Jose Reyes Jr., upheld the earlier decision of Executive Judge Lucenito Tagle of the Regional Trial Court of Imus, Cavite dated Sept. 13, 2002, favoring concerned residents in cities and municipalities surrounding Manila Bay in a class suit filed against the Philippine government in January 1999.

The Star, through lawyer Tony Oposa of the Philippine Bar Association (PBA), obtained a copy of the 13-page decision, which he described as a grandslam victory for environ-mental advocates like him who fear for the continuing depletion and deterioration of the countrys natural resources.

All 15 government agencies, after losing at the lower court, took the case to the CA in an effort to reverse the ruling.

However, the CA said the consolidated appeal was bereft of merit. The decision of the lower court does not require defendants to do tasks outside of their

usual functions. They are merely directed to come up with consolidated and coordinated efforts, each performing its basic function in rehabilitating and cleaning up the waters of Manila Bay, the CA ruling said.

SEC. 14. PurposeIt is the purpose of this Title to prescribe