2

History of the Writ of Kalikasan and the Writ of Continuing Mandamus

The Philippines, a country made up of 7, 107 islands, has the distinction of being dubbed

as a global epicentre of marine biodiversity1 and as one of the countries with top mega-diversity

in the world. However, it is considered a climate hotspot, meaning that it suffers from the

increasing scarcity of natural resources, one of the effects of climate change. Due to the number

of animal species becoming extinct as a result of habitat destruction, the country is also seen as a

biodiversity hotspot.2 Interestingly, it has been noted that “on policy level alone, the Philippines

has one of the world’s most developed approaches to environmental protection and preservation.”

However, “failure of the institutional and governmental aspects of environmental protection”

limits the effectiveness of the country’s environmental laws.3

It was in this context that the Philippine Supreme Court (SC) promulgated the Rules of

Procedure for Environmental Cases, also known as the Green Rules, on April 29, 2010, through

the SC Administrative Matter (A.M.) no. 09-6-8. The Court issued such rules in the exercise of

its powers granted by the 1987 Constitution in Section 5, Article VIII. Said provision gives the

Court the power to “[p]romulgate rules concerning the protection and enforcement of

constitutional rights.”

Through the Green Rules, the Court introduced the writ of kalikasan, the first of its kind

in the world and Filipino-made, and the writ of the continuing mandamus, among the actions

available, aside from the consent decree and the environmental protection order among others4.

The Green Rules was conceived to address the three main roadblocks in environmental litigation.

1
Kent E. Carpenter and Victor G. Springer, “The center of the center of marine shore fish biodiversity: the
Philippine Islands,” Environmental Biology of Fishes 72, (April 2005),
http://link.springer.com/article/10.1007%2Fs10641-004-3154-4 (accessed July 12, 2015)
2
DENR-FAPSO, Philippines MEA portal, http://mea.denr.gov.ph (accessed July 12, 2015)
3
Francis N. Tolentino, “An Environmental Writ: The Philippines’ Avatar,” IBP Journal 35, 1
(August 2010): 119
4
Ibid. 127
 3

The first is the limited ability of individuals and groups, such as the poor and marginalized

sectors, to file environmental suits. Second is the inherent delay in the judicial process and the

third roadblock is the difficulty in making use of traditional rules to obtain and present evidence

for environmental cases.5

This paper, which will focus on the writ of kalikasan and the writ of continuing

mandamus, aims to trace the roots of the said writs from the international arena to the Philippine

context, through the lens of the Supreme Court by way of its landmark rulings on environmental

cases. From these cases, the paper will discuss how it led the Court to promulgate the Green

Rules, and will describe the immediate application of the said writs.

What is the Writ of Kalikasan?

The writ of kalikasan or nature is a special civil action that is defined in Section 1 of Rule

7 as “available when environmental damage is of such magnitude that it prejudices life, health,

or property of inhabitants in two or more cities or province.” It is available to persons whose

right to a balanced and healthful ecology was violated or threatened by an unlawful act or

omission of a public official or employee or private individual or entity. Section 3 states that

payment of docket fees in filing the petition was not required.6

When the petition is found sufficient in form and substance, the court must issue the writ

within three days after the application was filed and must set the hearing within sixty days. The

proceedings must terminate within 60 days from its submission for resolution. Unlike the

procedure in civil and criminal cases, the process for its issuance takes on the nature of a

5
Rommel J. Casis, “Green Rules: Gray Areas and Red Flags,” Philippine Law Journal, 86, (July 2012): 768
6
Rules of Procedure for Environmental Cases, Rule 7
 4

summary proceeding so as to facilitate the speedier disposition of cases.7 The reason for this

emphasis on swift judicial action was the magnitude and irreversibility of environmental threats. 8

An application for the writ of kalikasan shall be filed with the Supreme Court or with any

of the stations of the Court of Appeals (CA), given its nationwide jurisdiction9. This aspect of the

writ was meant to address one of the challenges in implementing environmental laws and that is

the fact that the violation committed or the harm caused is not confined within the border of a

certain place. With these courts’ nationwide jurisdiction, offenders cannot escape from their

liability by claiming the court’s lack of jurisdiction.10

What is the Writ of Continuing Mandamus?

This writ is defined in Rule 1, Section 4(c) as that which is “issued by a court in an

environmental case directing any agency or instrumentality of the government or officer thereof

to perform an act or series of acts decreed by final judgement which shall remain effective until

judgement is fully satisfied.” It is available when there is unlawful neglect of the performance by

the agency or government instrumentality in connection with the enforcement or violation of an

environmental law or right or when it unlawfully excludes another from the use or enjoyment of

such right.11 However, unlike the writ of kalikasan, this writ can be filed with the Regional Trial

Court exercising jurisdiction over the territory where the actionable neglect or omission

occurred, aside from the CA and the SC.12

7
Ibid., Sec. 15
8
Casis
9
Rules of Procedure for Environmental Cases, Rule 7, Sec. 3
10
Supreme Court. Rationale to the Rules of Procedure on Environmental Cases,
http://philja.judiciary.gov.ph/assets/files/pdf/learning_materials/A.m.No.09-6-8-SC_rationale.pdf, (accessed at July
12, 2015)
11
Rules of Procedure for Environmental Cases, Rule 8
12
Casis, 781
 5

The writ has been described as an “extensive, persistent, and continuing order of the court

to implement an action plan to remedy” the environmental harm that was caused.13 Being in the

nature of a mandamus, it means that the writ compels the performance of a ministerial duty or

that “which requires neither the exercise of official discretion nor judgment.”14

Under this writ, the Court can render relief with a “broad scope to encompass creative

means necessary for the preservation, protection or rehabilitation of the environment.” This may

come in the form of requiring the concerned government agencies to submit a quarterly progress

report and of even creating an advisory committee amongst the members of the Court to

supervise the agencies’ compliance with the ruling.15

The continuing mandamus must not be confused with the writ of mandamus that is

provided as one of the special civil actions in Section 5 under Rule 65 in the Rules of Court.

Same as the latter, though, it is granted when there is an unlawful neglect of the performance of

duty and when there is no other plain, speedy, and adequate remedy in the course of law. The

difference lies in how the execution is carried out in both actions. According to Rule 39 of the

Rules of Civil Procedure, execution, if proper, shall be issued by applying for this writ in the

court of origin—in this instance, the regional trial court.16 However, with the continuing

mandamus, the Supreme Court takes this duty from the lower court and executes the decision. In

other words, the Court exempts itself from its rules of procedure which, according to

13
MMDA v. Concerned Residents of Manila Bay, 574 SCRA 661 (December 18, 2008)
14
Presbiterio Velasco, “The Manila Bay Case – The Writ of Continuing Mandamus” (paper presented at the Asian
Judges Symposium on Environmental Decision Making, the Rule of Law, and Environmental Justice, Asian
Development Bank Headquarters, Manila, Philippines, July 29, 2010)
15
Diosdado Peralta, “Benefits and Challenges of the New Environmental Rules of Procedure” (paper presented at
the Third Chief Justices Roundtable on Environment, Royal Orchid Sheraton, Si Phraya Rd., Bangkok, Thailand,
November 17, 2013)
16
RBSI Editorial Staff, 1997 Rules of Civil Procedure, (Quezon City, Manila: Rex Printing Company, Inc., 2011),
92
 6

jurisprudence, is allowed for it possesses the power to suspend its own rules, whenever the

purposes of justice so require.17

What is a Writ?

A writ is defined as the court’s written order in the name of a state or other competent legal

authority, commanding the addressee to do or refrain from doing a specified act. 18 Before diving

into the background of both writs, it is essential to know the concept of the writ and to be

familiar with its history, which ranges back to the medieval times when common law was

beginning to take shape. The invention of the writ was attributed to the Anglo-Saxons, one of

the Germanic tribes that overran West Rome after its fall on 476 A.D.19 They were the precursors

of the common law which has different meanings, depending on its context, but in general, is

defined as the unenacted part of the English law which is found in the decisions of the courts as

opposed to the Acts of Parliament and subordinate legislation20. The word, writ, or breve, in

Latin, was then defined as a letter addressed by the king to a sheriff or other officer commanding

steps to be taken to determine a controversy or to secure a right. It is an order in the king’s name

to summon a person or the party accused to appear before the court. It was called breve or brevia

due to the fact that it came in the form of short written instructions.21 There were different kinds

of writ issued for a specific action or remedy which was sought which were known to law.22

In the Philippines, the three major writs are the certiorari, mandamus and injunction.

These can be granted when great and irreparable injury to the plaintiff is sought to be avoided

and when there is no other speedy, adequate, and available remedy available in law.23 Aside from

17
Ginete v. Court of Appeals, 296 SCRA 38 (September 24, 1998)
18
Black’s Law Dictionary, 8th ed., s.v. “Writ.”
19
Tolentino, Environmental Writ, 126
20
O. Hood Phillips and A.H. Hudson, A First Book of English Law, 7th ed.( London, Sweet and Maxwell: 1977), 7
21
Max Radin, Handbook of Anglo-American Legal History (St. Paul, Min., West Pub. Co.:1936), 179
22
Oliver Wendell Holmes, Jr., The Common Law (Boston: Little, Brown and Co.: 1923), 274
23
Tolentino, Environmental Writ, 127
 7

the writs of kalikasan and of continuing mandamus, the Court in recent years promulgated the

rules on the Writ of Amparo, which became effective on October 24, 2007, and the Writ of

Habeas Data, which became effective on February 2, 2008.24

The Landmark Decision in Environmental Rights

The landmark case of Juan Antonio Oposa v. The Hon. Fulgencio S. Factoran, also

known as the Children’s Case of the Philippines which was decided on 1993, offered an angle for

viewing environmental rights as constitutionally-guaranteed and fundamental human rights25. In

this case, due to the alarming deforestation of hectares of the Philippine rainforest, 43 children in

representation of their generation and “generations yet unborn” went to the court to compel the

Secretary of the Department of Environment and Natural Resources to cancel all the existing

Timber License Agreements (TLA’s) and to desist from issuing new ones. These were issued by

the DENR to logging companies who, according to the petition, were responsible for the current

rate of trees being cut down. The petitioners said that this will work great damage and irreparable

injury to plaintiffs, especially to the minors and their successors, who may never see, use, benefit

from and enjoy this rare and unique natural resource treasure.26 Oposa, the counsel and one of

the plaintiffs in the case, is an international figure in environmental law and a holder of a

master’s degree in Environmental Law from the Harvard Law School.27

Despite the dismissal of their case by the Regional Trial Court in Makati City, the

petitioners appealed to the Supreme Court which recognized their standing to sue, basing it on

the concept of intergenerational responsibility in relation to their right to a balanced and healthful

24
RBSI Editorial Staff, 1997 Rules of Civil Procedure, (Quezon City, Manila: Rex Printing Company, Inc.), 813,
824
25
Supreme Court, 61
26
Oposa v. Factoran, 224 SCRA 792 (July 30, 1993)
27
Hilario G. Davide Jr., The Environment as Life Sources and the Writ of Kalikasan in the Philippines,
Pace Environmental Law Review 29, 2 (January 2012):593
 8

ecology. This concept means that every generation has the “ethical obligation” to protect the

environment for the use and enjoyment of the next generation. Thus, the Court granted their

petition and ruled that this right concerning the environment is “nothing less than the right to

self-preservation and right to self-perpetuation” and that it even predates all governments and

constitutions.28

Still, it was in this case that the Court had the opportunity to interpret Section 16, Article

II of the 1987 Constitution which reads, “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.”

What is even more striking was that this provision recognizing the importance of ecology was

only incorporated in the 1987 Constitution. Former Chief Justice Reynato S. Puno, in describing

it, said, “For the first time, the right of the person to a balanced and healthful ecology was

recognized not only as an abstract policy statement, but an enforceable legal right.” 29

Former Chief Justice Puno also cited the exchange between the members of the

Constitutional Commission for the 1987 Constitution to show that even the Framers realized that

the right to a healthful ecology must be advanced, not only for the sake of the present generation.

A draft of Section 16 shows that it included the phrase, “right of the people and posterity,” but

upon its amendment, the last word was omitted for, in the words of Commissioner Ambrosio P.

Padilla, what is placed in the Constitution was for the present and future generations.30

Thus, the Court ruling emphasized that environmental rights are enforceable in the court

of law.31 It is to be noted that Section 16 is under Article II which contains the Declaration of

Principles and State Policies, not in the Bill of Rights in Article III of the 1987 Constitution.

28
Oposa
29
Reynato S. Puno, Philippine Environmental Practice and the Role of the Courts, The PHILJA Judicial Journal, 6,
20 (April-June 2004): 14
30
Journal of the 1986 Constitutional Commission, Volume III, 09-23-1986 Journal No. 89
31
Rationale, 61
 9

There are Constitutional provisions that are self-executing, which means that these are “complete

and become operative without the aid of an enabling legislation. 32” Not all are self-executing,

however, and these are found in Article II. Such Principles and State Policies are not ready for

enforcement through courts, but are used by the judiciary as aids or as guides in the exercise of

its judicial review and by the legislature in its enactment of laws.33

The Court, through the Oposa ruling, however, made an exception with Section 16. Its

decision read, “While the right to a balanced and healthful ecology is to be found under the

Declaration of Principles and State Policies...it does not follow that it is less important than any

of the civil and political rights enumerated in the latter.34” In effect, the decision changed the

way in which Article II was seen, in contrast to the view shared by constitutionalists. Fr. Joaquin

Bernas, one of the 1987 Constitution’s framers, said that though almost all the other provisions

in the Bill of Rights are not self-executing and need implementing legislation to be effective,

Section 16 has been recognized by the Court in Oposa as self-executing.35

The Oposa decision was lauded as a best known jurisprudential triumph for having

declared that the correlative duty to protect the environment could be exacted on every

individual. It was considered a progressive approach to environmental justice because it revealed

that the Court was not restrained by artificial doctrinal barriers.36 In the international scene,

foreign authors called it a staple of environmental law scholarship and as a seminal decision for

32
Manila Prince Hotel v. GSIS, G.R. No. 122156. 267 SCRA 408 February 3, 1997
33
Tanada v. Angara, G.R. No. 118295. 272 SCRA 18 May 2, 1997
34
Oposa
35
Bernas, Joaquin. “A balanced and healthful ecology,” Inquirer Opinion.
http://opinion.inquirer.net/inquireropinion/columns/view/20090202-186883/A-balanced-and-healthful-ecology
(accessed July 16, 2015)
36
Rationale, 62
 10

it implemented the right to a healthy and decent environment, and intergenerational equity and

responsibility, components of an influential international instrument on environmental rights. 37

What Led the Court to the Oposa Ruling

A series of international bodies and conventions which promulgated treaties and

declarations that became influential in environmental justice led to a growing awareness of

environmental protection in the international community, including the Philippines. The concept

of intergenerational responsibility, for example, cited in Oposa, has its roots on international

treatises. To be clear, there are many approaches to the broad field of environmental law, but this

discussion will be focused on the human rights-based approach for the reason that this was used

by the Court in promulgating the Green Rules.38

The first source of environmental rights was the Universal Declaration of Human Rights

in 1948, specifically Sec. 25, par.1 which partly reads, “Everyone has the right to a standard of

living adequate for the health and well-being of himself and of his family...39”Though a non-

binding instrument, this was the first international instrument to declare that the enjoyment of all

human rights is dependent on a sound environment.40

Fast-forward to 1972 when the United Nations Conference on the Human Environment

convened in Stockholm which resulted to the promulgation of the Stockholm Declaration. This

event was considered a “major turning point that marked the culmination of efforts to place the

protection of the biosphere on the official agenda of international policy and law.41” The

37
Neil A.F. Popovic, In Pursuit of Environmental Human Rights: Commentary on the Draft Declaration of
Principles on Human Rights and the Environment, Columbia Human Rights Law Review, 27 (Spring 1996): 487,
513
38
Rationale, 47
39
United Nations. 1948. Universal Declaration of Human Rights. December 10, 1948.
http://www.un.org/en/documents/udhr/ (accessed July 16, 2015)
40
Rationale, 52
41
Lynton K. Caldwell, International Environmental Policy: Emergence and Dimensions, 2nd ed. (Durham, N.C.:
Duke University Press, 1990): 55
 11

Stockholm Declaration was the first international document which recognized the right to a

healthy environment by linking environmental protection to human rights. It contained 26

principles and an action plan for future implementation. Before, the independent right to a

healthy environment was not explicitly stated. However, the Stockholm Declaration clearly set

this forth as its first Principle which reads, “Man has the fundamental right to freedom, equality

and adequate conditions of life, in an environment of a quality that permits a life of dignity and

well being, and he bears a solemn responsibility to protect and improve the environment for

present and future generations.”42

Twenty years later, in 1992, the “Earth Summit” or the UN Conference on Environment

and Development was held in Rio de Jainero, Brazil. Its significance lies in the fact that, aside

from being organized as the predecessor of the Stockholm convention, it culminated with the Rio

Declaration, a document which extolled on the concept of sustainable development in relation to

environmental protection. Sustainable development is defined as that which meets the needs of

the present without compromising the ability of future generations to meet their own needs.43

The Rio Declaration also pitched in strategies to reverse the effects of environmental

degradation while keeping mind efforts to promote international and national sustainable

development. Both the Stockholm and Rio declarations, though not legally binding, were

recognized as important sources of environmental law for being part of generally accepted

international principles.44

42
United Nations Conference on the Human Environment. 1972. Declaration of the United Nations Conference on
the Human Environment. June 16, 1972
http://www.unep.org/Documents.Multilingual/Default.asp?documentid=97&articleid=1503 (accessed July 16, 2015)
43
David A. Wirth, The Rio Declaration on Environment and Development: Two Steps Forward and One Back, or
Vice Versa? Georgia Law Review 29 (Spring 1995): 599
44
Joan Michelle Legaspi, Access to Environmental Justice: A Sourcebook on Environmental Rights and Legal
Remedies ( ,2011): xxviii
 12

Aside from these international documents, also influential in the promulgation of the

Green Rules was the Draft Principles on Human Rights and the Development. This was

published in 1994 which, although never formalized, highlighted the indivisibility of human

rights and environmental rights.45 The said Draft was based on the 1994 report made by UN

Special Rapporteur on Human Rights and Environment Fatma Zohra Ksentini, thus containing

some of the latter’s essential points. The report and Draft both integrated the concept of

sustainability with the person-oriented right to a healthy environment.46 The Court said that by

placing environmental rights within the human rights construct, this was the ideal framework

wherein the people, as right-holders, can enforce and exercise their rights.

Aftermath of the Oposa decision

From its decision in Oposa, the Court, according to some authors, continued to prove

itself as a champion of environmental rights as seen in some cases47. The first of these was the

Laguna Lake Development Authority vs. CA, which was decided on March 16, 1994. It involved

the Caloocan city government that was found out by the LLDA to have been maintaining a dump

site in the Camarin area without securing the necessary permit from the latter. The Court ruled in

this case in favour of LLDA, saying that the said agency under its charter is mandated to promote

the development of the said area with due regard to the environmental management and the

prevention of ecological disturbance. The decision emphasized on the people’s right living near

the dumpsite to a pollution-free environment. 48

Another case was Hilarion M. Henares, Jr. v. Land Transportation Franchising and

Regulatory Board (LTFRB), which was decided on 2006, and it involved the petition to compel

45
Rationale, 56
46
Id.
47
Rationale, 62
48
Laguna Lake Development Authority v. CA. G.R. No.110120. 231 SCRA 292. March 16, 1994
 13

the LTFRB and the Department of Transportation and Communications to require public utility

vehicles to use compressed natural gas as alternative fuel. The Court did not grant their petition

for a writ of mandamus due to the fact that no law mandates the said government agencies to

compel anyone to use natural gas and the mandamus would only be granted if there is such a

law. However, it is significant for it recognized the petitioners’ right to clean air, thus also

recognizing their standing based on the said right.49

However, the legacy of the Oposa ruling neither ended with its declaration that the right

to a balanced and healthful ecology is an enforceable right nor with the pro-environment leaning

of the Court in the following cases. After the Oposa decision was promulgated, there were

increasing calls to strengthen environmental adjudication which included the promotion of

environmental advocacy before judicial and quasi-judicial bodies.50

In response to this, the Court began its efforts to address environmental concerns. In

1993, it issued Administrative Order No. 15-13-93 which designated special courts to handle

violations of the Forestry Code, due to the growing number of cases involving the same.

However, it was soon found out that there was the need for a more deliberate framework to

engage the court system in cooperation with the environmental agencies. In line with this,

trainings of the judges and court personnel were begun by the Philippine Judicial Academy

(PHILJA). Topics include the basic environmental laws, provisional remedies, abatement of

nuisance, tort action, damages, evidence, international environmental law, problem areas in

prosecution or enforcement, environmental economics, and climate change.51

49
Henares vs. Land Transportation Franchising and Regulatory Board. G.R. No. 158290.505 SCRA 104. . October
23, 2006
50
Sedfrey Candelaria and Maria Milagros Ballesteros, “Designation of Green Benches in the Philippines: Regional
Exchange in Support of Improved Judicial Institutions and Capacity,” Asian Environmental Compliance and
Enforcement Network, www.aecen.org/download/GreenCourtsPaper.pdf
51
Id.
 14

In 2005 and 2006, PHILJA went on to hold two roundtable discussions to discuss the

challenges in environmental litigation and to expand the concept of the green benches or courts

which would handle environmental cases. In 2007, the Asian Justices Forum on the Environment

was then held by the PHILJA, in partnership with international development organizations, such

as the United States Agency for International Development. With the input from senior justices

in different jurisdictions, a plan of action was devised to establish the green courts in the

country.52

Thus, on January 23, 2008, the Supreme Court designated 117 first and second level

courts as green courts by virtue of SC A.O. no. 23-2008. This move gave the courts the

jurisdiction to try, hear, and decide cases involving violations of environmental law within their

territorial jurisdiction.53 According to Chief Justice Puno, the purpose for the setting up of green

courts was to expedite the resolution of all pending environmental cases at the time.54

Background of the Writ of Continuing Mandamus

Following the Oposa decision fifteen years later was another landmark case in

environmental law and this was Manila Metropolitan Development Authority (MMDA) vs.

Concerned Residents of Manila Bay, wherein the writ of continuing mandamus was first

adopted55. It is to be noted that the said writ came into existence prior to that of the writ of

kalikasan.

The MMDA case, which was decided on December 18, 2008, involved the complaint by

the residents on the deteriorating water quality of the Manila Bay. The petitioners were “fourteen

52
Id.
53
Tolentino, 129
54
Andreo Calonzo, “SC chief Puno wants to institute ‘writ of kalikasan’ before he retires,” GMA News Online,
January 30, 2010, http://www.gmanetwork.com/news/story/182839/news/nation/sc-chief-puno-wants-to-institute-
writ-of-kalikasan-before-he-retires (accessed July 18, 2015)
55
Velasco, “The Manila Bay Case”
 15

young, but civic minded people” who filed a suit in 1999 against ten executive departments and

agencies for the neglect in their performance of duty. According to them, the waters of Manila

Bay were below the allowable standards set by law. They prayed for the Court to compel the

MMDA, DENR, and the other government agencies to clean up the bay and to submit a concrete

plan. On the other hand, one of the main arguments of the respondents was that the writ of

mandamus cannot be used on them because what they’re being compelled to do was not their

ministerial duty, but that which involves their discretion, thus outside the bounds of the writ.

They said that the operation of landfills would entail policy evaluation and the exercise of

judgment on their part56.

However, the Court here ruled that, even though the task may involve a decision-making

process, it does not change the fact that there are laws mandating the MMDA to set up such

landfills, making the said task a statutory command. Ruling in favour of the respondents, the

Court denied the petition by the government agencies and ordered them to “restore and maintain”

the waters of Manila Bay to a safer level. Citing the case of Oposa, the decision stated that even

if there was no law compelling them to clean up the bay, they cannot escape from their

obligation to future generations of Filipinos to keep the bay clean.57

All in all, by issuing the continuing mandamus, the Court’s directives revolved around

three main areas: 1) prevention, control, and protection; 2) prosecution and sanctions; and 3)

rehabilitation for a holistic and long-term solution. The Court also formed the Manila Bay

Advisory Committee headed by Associate Justice Presbitero J. Velasco, Jr. to verify the

compliance reports submitted by the government agencies with three other experts. Associate

Justice Velasco, Jr. noted that this was the first time that the Supreme Court organized such a

56
Metropolitan Manila Development Authority v. Concerned Residents of Manila Bay, G.R. Nos. 171947-48, 574
SCRA 661, December 18, 2008
57
Id.
 16

committee to oversee the implementation of a decision. All in all, he described that the ruling in

the case was all-encompassing for the Court tried to address all possible causes, whether direct or

indirect, to the pollution of the Manila Bay.58

What is significant here was the adoption of the concept of the writ of continuing

mandamus which compels the government agency to commit a certain action with the implied

risk of contempt of court in case of failure to do so. The MMDA case was described as the first

in the series of decisions affirming the citizens’ constitutional right to push government agencies

that skirt their obligation to provide for institutional arrangement for environment protection.59

The continuing mandamus is not explicitly mentioned in the Court’s procedural rules, but is not

prohibited either. Also called continuing court interference, this action is resorted to in situations

that involve the implementation of difficult and complicated sequential activities with a lengthy

time frame. By requiring the said government agencies to continuously maintain the waters of

the bay at a level fit for swimming and other direct-contact activities, the Court order had an

unlimited lifespan and validity that what it issued may be even considered as a perpetual

mandamus.60

It is interesting to note that the writ of continuing mandamus was rooted on a different

judicial discipline and this was stated in the MMDA decision. The portion stating thus reads:

“Under what other judicial discipline describes as continuing mandamus, the Court may, under

extraordinary circumstances, issue directives with the end in view of ensuring that its decision

would not be set to naught by administrative inaction or indifference.”

58
Presbiterio J. Velasco, “Manila Bay: A Daunting Challenge in Environmental Rehabilitation and Protection, “
Oregon Review of International Law, 11 (2009): 448
59
Rationale, 64
60
Velasco, “Manila Bay: A Daunting Challenge in Environmental Rehabilitation and Protection”, 454
 17

The Philippine concept of a continuing mandamus traces its origin to the cases ruled upon

by the Supreme Court of India. These were T.N. Godavarman v. Union of India & Ors, which

was decided in 1997, and Vineet Narain v. Union of India in 1998.61 Associate Justice Velasco

also cited the Indian case, M.C. Mehra v. Union of India, as influential.62

In Godavarman, also known as the Forest Conservation Case, the writ of continuing

mandamus was issued to save the country’s forests from rapid deterioration due to illegal

logging, and in view of the nature of the case, the court must continuously monitor compliance

with its orders63. Although the petition merely asked the Court for directions on how to curb the

illegal practice, the high tribunal went further and entered into policy determination to save the

trees. The decision suspended the felling of trees and even banned its operation in certain areas

which froze the country’s timber industry. It even prohibited the transportation of timber from

the areas where logging was banned and controlled the prices of the pieces of timber which were

salvaged. In effect, the Court took upon itself to be the supervisor of all forest issues.64

In the case of Narain, the writ was issued for the enforcement of the court order to clean

up the Ganges River. The Court therein stated that the reason for the continuing mandamus is

because the “mere issuance of a mandamus is futile and that the Court has “decided to issue

directions from time to time and keep the matter pending, requiring the agencies to report the

progress of investigation so that the monitoring by the court would ensure [its] continuance.65”

61
Supreme Court. Annotation to the Rules of Procedure in Environmental Cases,
http://philja.judiciary.gov.ph/assets/files/pdf/learning_materials/A.m.No.09-6-8-SC_annotation.pdf (accessed July
15, 2015)
62
Velasco, “The Manila Bay Case”
63
M.C. Metha v. Union of India, 4 SCC 463 (1987), accessed July 18, 2015, http://www.ielrc.org/content/e9710.pdf
64
Manu Nair, “T.N. Godavarman v. Union of India - The Application of ‘Continuing Mandamus’ as a Tool for
Sustained Vigilance of Forest Conservation,” The International Environmental News, June 2005
http://apps.americanbar.org/intlaw/committees/business_regulation/environment/nairreportjune05.pdf, (accessed
July 18, 2015)
65
Id.
 18

Thus, by applying the novel writ in its environmental cases, the Supreme Court of India

was lauded for having acted in fulfilment of the government’s obligation to protect the

environment. On the other hand, in the case of M.C. Mehra, the writ of continuing mandamus

was used enjoin tanneries along the Ganges River from releasing into the river untreated

effluents and to require them to keep their primary treatment plants in working order.66

With the green courts already in place and a writ of continuing mandamus already part of

judicial arsenal in environmental litigation, there remains the backlog of pending environmental

cases, as the Court found out in one of the series of forums it organized to facilitate access to the

courts. This was intended to strengthen the court’s role as protector of the people’s rights. 67
At

the time, the Court was headed by the 22nd Chief Justice Reynato S. Puno who led this

initiative.68

In 2009, the Court turned its attention to the “third generation” or the rights to a healthy

environment, intergenerational equity, and sustainability. It held the two-day Forum on

Environmental Justice, with the theme, Upholding a Balanced and Healthful Ecology. The event

was held simultaneously from April 16 to 17, 2009 in three different locations across Luzon,

Visayas, and Mindanao. During this forum, around 600 participants from different sectors

discussed the impediments to environmental justice and gave recommendations in addressing

them. These were then endorsed to the Supreme Court and became the basis for the draft of the

special rules of procedure which was intended to speed up the resolution of environmental

66
M.C. Metha
67
Norman Bordadora, “SC eyes new writ to speed up environmental cases,” Inquirer News, January 31, 2010
http://newsinfo.inquirer.net/ breakingnews/nation/view/20100131-250512/SC-eyes-new-writ-to-speed-up-
environmentalcases (accessed July 19, 2015)
68
Reynato S. Puno, Rethinking Democracy: Significant opinions of Chief Justice Reynato S. Puno (Manila,
Philippines: Supreme Court of the Philippines, 2010), xvi
 19

cases.69 It was pointed out that the number of unresolved environmental cases stood at around

3,120 in 2008, according to the data from the environmental group, Haribon.70

Having forwarded the recommendations to the Supreme Court, the Sub-Committee on the

Rules of Procedure for Environmental Cases convened to review these and finalize the rules.

Among the actions contemplated was the writ of kalikasan which “was intended to provide

stronger defense for environmental rights through judicial efforts where institutional

arrangements of enforcement, implementation, and legislation had fallen short.71” After a year of

studying the existing procedural rules and practices of other jurisdictions, the Court promulgated

the Green Rules, wherein the writ of kalikasan first came into light. Then Chief Justice Puno

described that the new writ “aims to encourage more citizens to file suits involving violations of

the country’s environmental laws and to solve the problems of delays on the disposition.72”

Application of the Writ of Kalikasan

No sooner had the Court issued the Green Rules when Oposa, the counsel and one of the

plaintiffs in the landmark 1993 case, tried it out. In behalf of the Global Legal Action on Climate

Change, a civil society organization, Oposa filed the first petition for the writ of Kalikasan on

April 21, 2010. The group went to the Court to compel the government to enforce RA No. 6716

which provides for the construction of water wells, rainwater collectors which can ease flooding.

Among the respondents were Department of Public Works and Highways and the Department of

Interior and Local Government. 73

69
Peralta, “Benefits and Challenges”
70
Tolentino, 131
71
Rationale, 78
72
Andreo Calonzo, “SC chief Puno”
73
Hilario G. Davide Jr., “The Environment as Life Sources and the Writ of Kalikasan in the Philippines,” Pace
Environmental Law Review 29, 2 (January 2012): 598
 20

However, the Court had no opportunity to apply the said writ because a settlement was

reached. A Memorandum of Agreement was signed by the Department of Public Works and

Highways and the Department of Interior and Local Government. Both departments promised to

construct rainwater collection systems by the end of 2012.74

Nevertheless, the first writ of kalikasan was issued in the case of West Tower

Condominium Corporation v. First Philippine Industrial Corporation (FPIC) on November 29,

2010. The petition was filed on November 15, 2010 by the residents of the said condominium

unit and “in representation of Barangay Bangkal, and others, including minors and generations

yet unborn” because of the oil leakage in the condominium’s basement from a FPIC-owned fuel

pipeline.75

Conclusion

The ruling in the Oposa and MMDA cases, having been cited as influential in the

adoption of the Green Rules, reflect the notion that the Supreme Court has “embraced a more

proactive stance in environmental enforcement.76” One author even attributed this to the Chief

Justice Puno, who was also the ponente of the Oposa ruling.77 By 2010, before he stepped down,

the Court was able to complete the circle of human rights with the promulgation of the Green

Rules, described as the first in the world.78

In doing so, the Court may be criticized for this proactive stance and its exercise of

judicial activism or for taking over the duty which should have belonged to the other branches of

74
Elizabeth Barrett Ristroph, “The Role of Philippine Courts in Establishing the Environmental Rule of
Law,” Environmental Law Reporter, 42, 9 (September 2012): 10881
75
Id.
76
Peralta, “Benefits and Challenges”
77
Gloria Estenza Ramos, “Innovative Procedural Rules on Environmental Cases in the Philippines:
Ushering in a Golden Era for Environmental Rights Protection,” IUCN Academy of
Environmental Law E-Journal, 1 (2011), www.iucnael.org/en/documents/682-philippines/file (accessed at July 15,
2015)
78
Reynato S. Puno, Rethinking Democracy
 21

the government. Despite its critics, however, the Green Rules specifically the writ of kalikasan

and the writ of continuing mandamus, is a necessary judicial intervention, given the blatant

violations of environmental laws and the grave consequences of letting this go unabated. By

setting up this legal framework wherein petitioners can easily exercise their right to a balanced

and healthful ecology, the Court is merely acting out in exercise of its rule-making powers

provided by the 1987 Constitution.

Despite its brief, the writ of kalikasan and the writ of continuing mandamus are deeply

rooted on widely-accepted environmental principles, a product of a long series of international

and local dialogues. Why the Philippines was the first to conceive of the writ of kalikasan

remains to be another question to be answered, but it does attest to the fact that environmental

justice in this country is very relevant and promoted by the judiciary. , With this new addition to

the legal arsenal there is now no more excuse, both for the law enforcers and the citizens, to let

environmental violations remain unsolved.