CANDELARIA, MICHELLE DULCE MARIANO

E. Writ of KalikasanOverview

Then Chief Justice Reynato Puno said that while the writ of habeas corpus originated in England as a legal recourse for those wrongly detained, and the writ of amparo came from Latin America to address its own brush with human rights violations, the writ of kalikasan is proudly Philippine-made to deal with cases in the realm of ecology.

History

In 2009, the Supreme Court held a forum on environmental protection in Baguio City where difficulties in the prosecution of ecology-related crimes and the huge backlog pending in the courts were identified as among the issues affecting the implementation of environmental laws.The high court then came out with the writ of kalikasan the following year when it issued the rules of procedure for environmental cases as a special civil action to deal with environmental damage of such magnitude that it threatens life, health or property of inhabitants in two or more cities or provinces. Provision for the Writ of Kalikasan was written in 2010 by theSupreme Court of the Philippinesunder Rule 7 of the Rules of Procedure for Environmental Cases as a Special Civil Action. The Supreme Court underChief JusticeReynato Punotook the initiative and issued Rules of Procedure for Environmental Case because Section 16, Article II of the Philippines' 1986 Constitution was not a self-executing provision.A non-self-executing provision refers to one that cannot be invoked before the courts as it is. There must first be an enabling legislation or some other legal means by which the same can be effectuated and be a basis of a legal cause of action. (See: Tanada v. Angara, G.R. No. 118295. May 2, 1997)Definition

"Kalikasan" is a Filipino word for "nature".AWrit of Kalikasan is alegal remedyunderPhilippinelaw that provides protection of one's Constitutional right to a healthy environment, as outlined in Section 16, Article II of the Philippine Constitution, which says the "state shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature. The Writ of Kalikasan means a legal remedy available to any natural or juridical person, entity authorized by law, people's organization, non-governmental organization, or any public interest group accredited by or registered with any government agency, on behalf of persons whose constitutional right to a balanced and healthful ecology is violated, or threatened with violation by an unlawful act or omission of a public official or employee, or private individual or entity, involving environmental damage of such magnitude as to prejudice the life, health or property of inhabitants in two or more cities or provinces. (Rules of Procedure for Environmental Cases A.M. No. 09-6-8-SC Rule 7, Sec. 1)

Who and Where shall be filed?

The writ of kalikasan may be sought by anyone a) whose constitutional right to a balanced and healthful ecology is violated, or b) whose constitutional right to a balanced and healthful ecology is threatened with violation, by an unlawful act of omission of a public official or employee, or private individual or entity and such violation or threat involves environmental damage of such magnitude as to prejudice the life, health or property of inhabitants of two or more cities, or provinces. (Rule 7, Section 1)The petition for the writ of kalikasan shall be filed with the Supreme Court or with any of the stations of the Court of Appeals. (Rule 7, Section 3) Note, however, that the filing of a petition for the issuance of the writ of kalikasan shall not preclude the filing of separate civil, criminal or administrative actions. (Rule 7, Section 17) Within 3 days from filing the petition deemed sufficient in form and substance, the Court shall issue the writ and require the respondent to file a return. (Rule 7, Section 5) In response, the respondent is required to file a return containing his defenses and supporting evidence within a non-extendible 10-day period after the service to him of the writ. He must raise all defenses in the return, otherwise they are deemed waived. A general denial of the petitioners allegations shall be deemed an admission by the respondent. (Rule 7, Section 8) If the petition fails to file a return, the hearing shall proceed ex parte (i.e., the hearing will proceed with only 1 side being heard). (Rule 7, Section 10)The penalty of indirect contempt may be meted out to a) a respondent who refuses to file the return, b) a respondent who unduly delays the filing of a return, c) a respondent who falsifies a return, or d) any one who disobeys or resists a lawful process of court order. (Rule 7, Section 13)

In further recognition of the importance of a speedy resolution, the following filings are prohibited:

a) motion to dismissb) motion for extension of time to file returnc) motion for postponementd) motion for a bill of particularse) counterclaim or cross-claimf) third-party complaintg) reply, and h) motion to declare respondent in default. (Rule 7, Section 9)

However, the following motions are allowed:motion for ocular inspection (1) indicating the place/s sought to be inspected and (2) supported by affidavits of witnesses having personal knowledge of the violation or threatened violation of environmental law. andmotion for production or inspection of documents or things. (Rule 7, Section 12) When the court receives the return, it may call a preliminary conference to simplify the issues, determine the possibility of obtaining stipulations or admissions from the parties, and set the petition for hearing. The petition shall be given the same priority as petitions for the writ of habeas corpus, amparo and habeas data; thus, the hearing and the preliminary conference shall be all done within 60 days (Rule 7, Section 11) After the hearing, the case shall be submitted for decision in which case, the court may require the filing of memoranda within a non-extendible 30-day period from the date the case is submitted for decision.Within 60 days from the time the petition is submitted for decision, the court shall grant or deny the privilege of the writ of kalikasan. The reliefs that may be granted under the writ are the following:a) Directing respondent to permanently cease and desist from committing acts or neglecting the performance of a duty in violation of environmental laws resulting in environmental destruction or damage;b) Directing the respondent public official, government agency, private person or entity to protect, preserve, rehabilitate or restore the environment;c) Directing the respondent public official, government agency, private person or entity to monitor strict compliance with the decision and orders of the court;d) Directing the respondent public official, government agency, or private person or entity to make periodic reports on the execution of the final judgment; ande) Such other reliefs which relate to the right of the people to a balanced and healthful ecology or to the protection, preservation, rehabilitation or restoration of the environment, except the award of damages to individual petitioners. (Rule 7, Section 15) Appeal to the Supreme Court, under Rule 45 of the Rules of Court (i.e. a petition for review on certiorari), is available within 15 days from the notice of the judgment or denial of motion for reconsideration. It is important to note that this appeal may raise questions of fact. (Rule 7, Section 16)

This writ is an innovation of the Philippine Supreme Court as one of the legal means to combat the destruction of the environment. This writ is one of a kind, available only within Philippine jurisdiction. It is extraordinary in nature, meaning to say, that it can be resorted to only when other ordinary legal remedies such as injunction or damage suit are unavailing.The writ of kalikasan forms part of the new procedures in civil, criminal and special civil actions involving environmental laws. (Rule 1, Section 2, Rules of Procedure for Environmental Cases)[1] There are 2 special civil actions in the new rules for environmental cases, one is the writ of continuing mandamaus and the other is the writ of kalikasan.

Features of the Writ of KalikasanThe underlying condition for the writ to be issued is that, the magnitude requirement with regards to the destruction or imminent destruction of the environment which is sought to be prevented, must be present.The entities to whom the writ can be directed against, the Rules provides that it could be anybody. They could be public officials, employees or even private persons, for as so long as it could be proven that they violated or threatened with violation the constitutional right to a healthy environment of other people.The Rules likewise provides for various reliefs that could be granted by the courts under the writ which includes, among others, the issuance of order against the respondent to cease or refrain from committing acts violative of the rights of the petitioners asking for the writ. It can also be an order commanding the respondent to perform positive acts to preserve or protect the environment as well as to make reports of their compliance with these responsibilities. (Rules of Procedure for Environmental Cases A.M. No. 09-6-8-SC Rule 7, Sec. 15)

Writ of Kalikasan, appliedCurrently, there are at least two (2) instances wherein the writ of kalikasan was availed of. The first one was directed against an electric power distribution company and the second one was against an oil pipeline operator. The first case is still pending trial while the latter was successfully granted by the Philippine Supreme Court.

Recent Issues and CasesThe writ of Kalikasan may be sought to deal with environmental damage of such magnitude that it threatens life, health, or property of inhabitants in two or more cities or provinces.

SC denies Writ of Kalikasan for Tubbataha groundingThe Supreme Court (SC) denied the petition by an environmentalist group for the payment of damages by the United States government and the prosecution of US Navy officers in connection with the grounding of the minesweeper USS Guardian on the Tubbataha Reef National Park in Palawan.The plea for damages and the prosecution of the US Navy officers were contained in a petition for a Writ of Kalikasan filed by a group called Kalikasan Peoples Network for the Environment (Kalikasan PNE).The USS Guardian ran aground some 130 kilometers southeast of Palawan province after completing a port call at the former US naval base of Subic Bay, Olongapo City. It was en route to its next port of call in Indonesia. The vessel was extricated after 73 days at a cost of $45 million.The petitioners have asked the court to grant to the government primary and exclusive jurisdiction over American officials they considered liable for the Jan. 17, 2013, incident. The US officials held accountable for the reefs destruction included US Vice Adm. Scott Smith, commander of the US 7th Fleet, and Lt. Cmdr. Mark Rice, commanding officer of the Guardian.They also demanded a fine more than 10 times the Philippine governments assessment. The Philippines fined the United States P58 million for damaging the reef but laid no criminal charges.The writ of kalikasan petition says the unauthorized entry, grounding, salvage and ongoing post-salvage operations of the Guardian violate the constitutional rights of the residents of the provinces surrounding the Tubbataha Reef on the Sulu SeaPalawan, Antique, Aklan, Guimaras, Iloilo, Negros Occidental, Negros Oriental, Zamboanga del Norte, Basilan, Sulu and Tawi-Tawito a balanced and healthful ecology.The USS Guardian did not have a permit to enter [the Tubbataha Reefs Natural Park], the petition said. The vessel did not inform the marine park rangers of its presence and situation and was later discovered only through radar at 4 a.m. on [Jan. 17, 2013].In September 2014, the Philippine Supreme Court ruled unanimously against issuing a writ of kalikasan against theUnited States Governmentover thegrounding of the USS Guardianon theTubbataha Reefin 2013.Court of Appeals permanently stops field testing of genetically modified eggplants in the countryIn a landmark decision upholding the precautionary principle, the Court of Appeals has granted a petition filed by environmental groups and activists to permanently put to a stop nationwide field trials of genetically modified eggplants popularly known as Bacillus thuringiensis (bt) talong being conducted by a collaboration among the University of the Philippines in Los Baos and various government and private agencies.It is clear that there is no full scientific certainty yet as to the effects of the bt talong field trials to the environment and the health of the people, said the appellate courts Special 13th Division, speaking through Associate Justice Isaias P. Dicdican. Consequently, the field trials of bt talong could not be declared by this Court as safe to human health and to our ecology, with full scientific certainty, being an alteration of an otherwise natural state of affairs in our ecology.Appellate Associate Justices Myra V. Garcia-Fernandez and Nina G. Antonio-Valenzueala concurred in the decision.The court said even the bevy of local and foreign experts presented by proponents of the purportedly pest-resistant eggplants are all agreed that aside from the fact that there are no laws regulating the field testing of genetically-modified plants, their safety cannot fully be guaranteed. For this reason, the court said This is where the precautionary principle sets in which states that, when human activities may led to threats of serious and irreversible damage to the environment that is scientifically plausible but uncertain, actions shall be taken to avoid or diminish the threat.The petitioners, led by the well-known environmental group Greenpeace and Masipag the latter an organization of farmers and scientists for sustainable agriculture earlier brought the suit in April 26 last year before the Supreme Court under the High Courts new environmental protection procedures. The petitioners were represented in the suit by lawyers from the Roque and Butuyan Law Offices, led by Prof. Harry L. Roque Jr. and Roger R. Rayel.Named as respondents were the Department of Environment and Natural Resources, the Department of Agriculture, University of the Philippines (UP) Los Baos Foundation Inc., UP Mindanao Foundation Inc. and International Service for the Acquisition of Agri-biotech Applications. Greenpeace and Masipag were joined in the petition by activists and key figures in the academe and politics, among them Rep. Teddy Casio, Puerto Princesa Mayor Edward Hagedorn, folk singer Noel Cabangon and scientist Dr. Ben Malayang III.The Supreme Court issued the Writ of Kalikasan on May 2, 2012, directing the respondents to answer the petition. It subsequently remanded the petition to the Court of Appeals for hearings on the scientific and factual questions involved.At the time of the filing of the suit, field testing of genetically modified eggplant had already been done in Pangasinan, Laguna and Camarines Sur while others were still being conducted in Kabacan, North Cotabato.The petition argued that the field trials violated the constitutional right of the people to a balanced and healthful ecology because of the danger of contamination the technology posed to indigenous genetic resources of the country. But experts presented by the respondents, including some of the countrys top scientists at the University of the Philippines in Los Baos, claimed the bt talong technology is safe and does not cause harm to the environment.However, on questioning by the court, they admitted that the over-all safety of the bt talong remains to be unknown. Too, the court found that other than administrative issuances, there is no law that regulates field testing of GMOs in the country.Because of this, the court ruled to permanently stop all field testing of bt talong in the country and directed the respondents to rehabilitate the areas where the testing had already been completed.The bt talong involve the willful and deliberate alternation of the genetic traits of a living element of the ecosystem and the relationship of living organisms that depend on each other for survival, said the appellate court in its 24-page judgment. Consequently, the field trials of bt talong could not be declared by this Court as safe to human health and to our ecology, with full scientific certainty, it being an alteration of an otherwise natural state of affairs in our ecology.References:http://globalnation.inquirer.net/111233/in-the-know-writ-of-kalikasan-proudly-filipino/http://en.wikipedia.org/wiki/Writ_of_Kalikasan http://harryroque.com/tag/writ-of-kalikasan/http://business.inquirer.net/123697/court-of-appeals-stops-field-trials-of-genetically-modified-eggplanthttp://notocoal.weebly.com/writ-of-kalikasan.html#.VTfd9SFViko

BAR QUESTIONS (Remedial Law 2012)Writ of Kalikasan(99) A certificate against Forum-Shopping is not required in: a) petitions for probate of will. b) application for search warrant.c) complaint-in-intervention. d) petition for Writ of Kalikasan.

Writ of Amparo(2) Under the Rules on the Writ of Amparo, interim relief orders may be issued by the Court except: a) production order; b) witness protection order; c) hold departure order; d) temporary protection order.

Writ of Habeas Data(7) A wants to file a Petition for Writ of Habeas Data against the AFP in connection with threats to his life allegedly made by AFP intelligence officers. A needs copies of AFP highly classified intelligence reports collected by Sgt. Santos who is from AFP. A can file his petition with: a) RTC where AFP is located; b) RTC where Sgt. Santos resides; c) Supreme Court; d) Court of Appeals.References:http://globalnation.inquirer.net/111233/in-the-know-writ-of-kalikasan-proudly-filipino/http://harryroque.com/tag/writ-of-kalikasan/http://business.inquirer.net/123697/court-of-appeals-stops-field-trials-of-genetically-modified-eggplanthttp://notocoal.weebly.com/writ-of-kalikasan.html#.VTfd9SFViko