THE RIGHT TO A BALANCED AND HEALTHFUL ECOLOGY:

THE ODYSSEY OF A CONSTITUTIONAL POLICY

SUMMARY:

The Constitutional Policy regarding the right to a balanced and healthful

ecology is a continuing process of decision making and cannot be left interpreted
and operationalized by one sector of the government or of the society, but by the
interaction of a plurality of participants in a social decision process.

The author proposed to use the policy science approach developed by

Professors Myres Mcdougal and Harold Lasswell, which was articulated by Professor
W. Michael Reisman because he believes that it is the only theoretical framework
effective in piercing through and going beyond to understand the provisions in
environmental law.

According to Professor Reisman, the law is a social decision process. This

proposition described that a lawful decision is a choice made in conformity with
appropriate procedural and substantive norms. Many functions or operations are
concealed in the word decision. Anyone must distinguish law as myth system from
law as operational code. To understand law as well as to make it more effective is to
go beyond constitutional and statutory policy as a myth and as operational code.

The country has the most progressive and articulated environmental laws and
regulations. However, environmental problems remain daunting. Thus, it is
important to uphold what the law says and apply the same in reality. The role of
Judiciary in environmental policymaking as articulated in the myth system and
operational code is indispensable.

The author presented his analysis into two parts. The first part is entitled
Oposa v. Factoran: Locating the Role of the Judiciary in the Myth System while the
other is The Judiciary and The environmental Dilemma: The Operational Code.
Oposa v. Factoran: Locating the Role of the Judiciary in the Myth System

The case of Oposa vs. Factoran has been widely cited worldwide for its
concept of intergenerational responsibility, particularly in cases related to ecology
and environment. In the case the action was filed by several minors represented by
their parents against the Department of Environment and Natural Resources to
cancel existing timber license agreements in the country and to stop issuance of new
ones. It was claimed that the resultant deforestation and damage to the
environment violated their constitutional rights to a balanced and healthful ecology
and to health (Sections 16 and 15, Article II of the Constitution). The petitioners
asserted that they represented others of their generation as well as generations yet
unborn.

Finding for the petitioners, the Court stated that even though the right to a
balanced and healthful ecology is under the Declaration of Principles and State
Policies of the Constitution and not under the Bill of Rights, it does not follow that it
is less important than any of the rights enumerated in the latter: it concerns
nothing less than self-preservation and self-perpetuation, the advancement of which
may even be said to predate all governments and constitutions. The right is linked
to the constitutional right to health, is fundamental, constitutionalized, self-executing
and judicially enforceable. It imposes the correlative duty to refrain from impairing
the environment.

The court stated that the petitioners were able to file a class suit both for
others of their generation and for succeeding generations as the minors' assertion
of their right to a sound environment constitutes, at the same time, the performance
of their obligation to ensure the protection of that right for the generations to
come.

This case has been widely-cited in jurisprudence worldwide, particularly in

cases relating to forest/timber licensing. However, the approach of and cultural
rights has proved somewhat inconsistent, with some judgments resulting in the
enforcement of such rights but at least one instance in which the Court made a
statement that economic, social and cultural rights are not real rights.

The Judiciary and the Environmental Dilemma: The Operational Code

The role of Judiciary in environmental protection must be better equipped

with its ability to handle environmental disputes. The Judiciary has to determine and
define environmental problems particularly in the status of the common goods like
air, water, forests and other natural resources because these goods are seen as free
goods by all actual and potential users and there is no attempt to internalize in their
usage the costs of such consumption. Thus, environmental degradation in this
aspect becomes inevitable as discussed in the article, tragedy of the commons by
Garret Hardin.

The actual cost to the whole society with respect to consumption and usage
of our natural resources are not usually counted. The government failed to strictly
implement the laws by charging minimal fees for the permit to extract these
resources and by disregarding the ecological damage that it could inflict to our
nature and society.

The usual rationale behind allowing such externalities is that it could

contribute development and progress by creating more jobs and increasing the GNP.
There is no real basis for comparing the costs and benefits that these externalities
could bring. This leads to environmental dilemma as a problem of sustainable
development, a concept which was first articulated formally by the World
Commission on Environment and Development.

The concept of sustainable development was already accepted as a policy

underspinning our environmental law under PD No.1151 issued by former President
Marcos. However, this is difficult to operationalize because as experienced, all
parties to an environmental issue may agree to the goal of sustainable development
but divergence in particular positions often remain inevitable. Hence, the community
affected by such project, economically and politically marginalized, often find the
resources base diminished. In other words, one cannot still avoid the choice of which
value to prioritize whether environment or development.

Such environmental dilemma brought some aspects or types of environmental

disputes. The first is the dispute between the cost and benefit of ecologically harmful
activities and the cost and benefits of its prevention and regulation. The problem
however is that it requires the valuation of the goods that are relevant to a particular
environmental issue. With this, the Judiciary has difficulty in rationalizing over these
environmental disputes.

The second environmental dispute is the conflict of specific rights between

conflicting users. This is best manifested in the conflict between the rights of
commercial users and the industrial goals of the country. The dispute involves the
resolution of what general rights or values to prioritize and which specific rights in a
conflict should prevail.

The author suggested four perspectives that the judiciary or any other
participant in the environmental decision process may adopt singly or incombination
and they are the following:

a. Command and Control Strategy

The State should lay down specific standards that all must follow and should
monitor and enforce compliance by coercive or other measures. This is justified in
the Regalian Doctrine of the country. As a consequence of claim of ownership overall
natural resources, the Philippine government has to monopolize the decision process
on how to utilize these resources, which would in turn results to the adoption of a
short-sighted and extractive utilization policy because the State consistently favored
commercial users, and an extremely insecure land tenure system within the forest
zones.
b. Market based perspective

This approach is premised on the proposition that the best way of realizing
the goals of environmental policy is to use economic incentives to encourage
sustainable and ecologically-friendly activities or economic sanctions to discourage
unsustainable and pollutive actions. It requires divestment by the State of its
ownership claim over most natural resources and increasing the scope of resources
that may be covered by property rights.

c. Community Based Resource Management

This refers to the existence of variety of sustainable community resource

management in order to address the problem regarding the tragedy of the
commons. The system can range from the right of the community to be consulted
before any development project is implemented in order to enforce community
control and management of natural resources.

d. Pollution Prevention

Environmental policy should be strictly implemented to prohibit as many

forms of pollution as possible.

While the role of the Judiciary in environmental disputes is indispensable, the

executive and legislative are of course significant players in the environment as well.
The executive through the Department of Environment and Natural Resources
(DENR) is better equipped to deal with these issues. As to the legislative branch, an
analysis of the environmental laws it has passed is a response to the environmental
dilemma.
 Aside from the executive and legislative branches, the multilateral and
bilateral assistance agencies such as, the Asian Development Bank and World Bank
are central and crucial players in environmental policy making in the country. These
entities participate decisively by financing many environmental programs. They can
also modify, suspend and cancel financing of environmental programs or projects
which have an adverse effect on the environment.

As to the stakeholder, the most important are the commercial users and
communities of direct users. To this sector, the challenge is to realize and accept the
fact that the ways of unrestrained exploitation is over. They retain as much as power
as they can but without any willingness to compromise.