Philippine Law and Ecology

U.P.
LAW CENTENNIAL TEXTBOOK PROJECT
Philippine Law and Ecology

Volume I:
National Laws and Policies
ANTONIO G.M. LA VIRA

U.P. COLLEGE OF LAW
UNIVERSITY OF THE PHILIPPINES

COLLEGE OF LAW
Diliman, Quezon City
Philippine Copyright © 2012
by
UNIVERSITY OF THE PHILIPPINES

COLLEGE OF LAW
and
ANTONIO G.M. LA VISA
ISBN No. 978-971-15-0440-3
No part of this book may be reproduced in any form, or by any

electronic or mechanical means, including information storage
and retrieval systems, without permission in writing from the
author and the publisher, except by a reviewer who may quote
brief passages in a review.
Cover design by Aristotle L. Roxas

Cover photo by Cecilia Therese T. Guiao
Published by U.P. College of Law

AUTHOR'S PROFILE
Dean Antonio G. M. La Vifia is a lawyer, thinker and teacher.

He is a social entrepreneur, and a human rights and environ-
mental advocate. He is currently Dean of the Ateneo School of
Government, having taken this position in 2006 when he re-
turned to the Philippines after an eight-year stint in a Washing-
ton, D.C. environmental think tank, the World Resources
Institute (WRI). From 1996-1998, he was the Undersecretary for
Environment and Natural Resources of the Philippines. He is
cofounder of the Legal Rights and Natural Resources Center-
Friends of the Earth Philippines.
Dean Tony is an authority, and has published dozens of books,
papers and articles, on a range of subjects in law and gover-
nance, including in environmental law, constitutional law, cli-
mate change, indigenous peoples rights, biodiversity and
biotechnology, sustainable agriculture, trade and environment,
mining, public ethics, leadership, local governance, social ac-
countability and social entrepreneurship.
Dean Tony obtained his Masters (LLM) and Doctorate in Law
(JSD) from Yale Law School, and his first degrees from the
University of the Philippines (in law) and the Ateneo de Manila
University (in philosophy). He placed third in the 1989 bar ex-
aminations. Aside from teaching at the Schools of Government
and Law of Ateneo de Manila, he also teaches courses in the
Environmental Science, Political Science and Philosophy
Departments in the same university. He is also a professorial
lecturer at the University of the Philippines College of Law, the
De La Salle College of Law, and the Philippine Judicial
Academy.
ACKNOWLEDGMENTS
This book would not have been possible if my family- my wife

Titay and my children Eman, Rico and Rafa-did not allow me
to do my environmental work, which required me to live the
life of a homo viator, travelling all over the country and the
world to protect nature and serve communities.
I am of course indebted to Deans Marvic Leonen and Danilo
Concepcion for their support. Without the U.P. Law Centennial
Textbook Writing Project, I probably would not have embarked
on writing this textbook at this time.
Likewise, this book would not have been written without the
assistance of my students from the U.P. College of Law and the
Ateneo School of Law. In particular, specific sections of both
volumes were written with the research assistance of Danielle
Navarro, Marianne Sibulo, Carlo Marcaida, Jian Boiler, Carl
Edison Balagtas, Natasha Cayco, Cristina Mundin, Blesscille
Guerra, Yasmin Sanchez, and Joyce Ann Wong.
The Eagle Eyes columns reproduced in this book were a

product of collaboration with Christian Laluna. Likewise, the
text on the Environmental Rule of Procedure in Volume 2
benefited from work Josef Leroi Garcia and I did in drafting the
sections on environmental law for the Benchbook.
I am grateful to Elirozz Carlie Labaria, Margarita Roxas and
Arvin Jo for their assistance in the editing of this book, and to
Cecilia Therese Guiao, Alaya de Leon and Edgar Bonto for
their editing and research assistance. I also thank Professors
Eduardo Labitag and Myrna Feliciano, who were kind enough
to review drafts and gave valuable comments, and Mario dela
Cruz for preparing the book for publication.
Above all, I thank my long-time intellectual partner and friend
James Kho, who was indispensable in this effort to memorialize
a lifetime of environmental advocacy and lawyering into
analysis and text.
Finally, I thank all my students in all my environmental law
classes, as well as my colleagues in the environmental law
community (particularly those who worked/work with me or
whom I mentored/mentor in the Legal Rights and Natural Re-
sources Center, the Department of Environment and Natural
Resources and the Ateneo School of Government), for teaching
me everything I know about law and ecology. It is to them, as
well as to my future students and colleagues, that I dedicate
this work.
PREFACE
Astrology, while myth rather than science, was nonetheless

based on observations of the world by the philosophers and
alchemists of antiquity. One of their observations was that it is
possible for our world to be broken down into component ele-
ments, or the classical elements. In classical Western philoso-
phies and astrology, these elements are: Fire, Earth, Air, and
Water. Chinese thought, on the other hand, held the elements
to be Wood, Fire, Earth, Metal, and Water (wu xing).
People then believed that our material world, its natural phe-
nomena, dynamic interaction, and even the inherent or funda-
mental "powers" of anything and anyone are constructed out
of the interaction of the classical elements. The wu xing, for ex-
ample, held that wood, fire, earth, metal, and water generated
each other in turn, while they could also interact by "overcom-
ing"-water dousing fire, for example. In Western astrology,
each element imparts its qualities to its associated zodiac sign
(e.g., Aries is a Fire sign), and also had constructive and de-
structive relationships with other elements. The classical Greek
concept of the humors (fluids) of the body also associated each
fluid with the elements. To master one's knowledge and
command of these elements, they believed back then, was to
find the key to health, wealth, harmony, and happiness.
Of course, modern science has overtaken the classical

worldviews, both East and West, leaving the old ways to per-
sonal belief (not that it has stopped adherents from believing
otherwise). Health, wealth, harmony, and happiness are more
the province of medicine, economics, politics, psychology, and
ethics today than they are of astrology and Feng Shui-and
with good reason. Still, there is some wisdom in the old ways
that the modern world should understand, for the sake of our
environment. It is not in their scientific value, which is obvious-
ly lacking, but the way the classical Greeks, Chinese, and
others have viewed the world, compared to modern-day
humanity. The people of antiquity saw the world in terms of
the balance of its constituent elements, and sought to maintain
it. Today, that balance in our world and in our environment is
sorely lacking.
The world celebrates Earth Day and Earth Hour regularly,
global rituals to remind us of the importance of caring for our
environment. Beyond the ritual of turning off our lights off for
one hour, though, is the need for a sustainable effort for the
world, including the Philippines, to properly manage its natu-
ral resources and its ecology. Environmental degradation
threatens our country through loss of forest cover and fertile
agricultural lands, depleted fish stocks, contaminated water
supplies and breathing air, increased vulnerability to natural
disasters, and energy insecurity, leading to catastrophic eco-
nomic and social dislocations. It is not an exaggeration to say
that our people will lose income, livelihood, health, and suste-
nance because of a failure of environmental management. Eve-
ry country, rich or poor, is vulnerable to calamity (as Japan's
recent sufferings have shown), though poverty and poor
governance exacerbate the situation.
The philosopher Martin Heidegger explained the difference
between how man viewed nature then, almost with a view to-
wards art and philosophy; and how we view nature-or natu-
ral resources-now, as instrumental, exploitable, and often
without consideration for sustainability or ecological preserva-
tion. We do not need to fear nature, as though it were a venge-
ful force, and neither can we continue to view Mother Earth in
purely utilitarian terms. We need to combine the old and new
ways of looking at the environment, learning to understand
and respect nature. We need to, as the astrologer might sug-
gest, understand the balance of the elements of nature, and
master this balance, as the key to the health, wealth, harmony,
and happiness of families, communities, and nations alike.
This is not just a philosophical exercise. At the family level, we
need to acquire habits of ecological respect when it comes to
things like waste management and recycling, or water and en-
ergy conservation. We must find ways to harness communities
as environmental managers in their own right, protecting vul-
nerable natural resources like our dwindling forests. At the na-
tional level, we must engage in innovation and reform to pro-
vide a bureaucratic infrastructure that can successfully manage
all aspects of environmental and natural resource management,
protection, and utilization.
The ancient world has passed to superstition and myth, yet
some of their mindsets remain relevant even up to today. Cele-
brating Earth Day is not just about a yearly ritual or environ-
mentally-sensitive habits, but about understanding what it
means to live with our environment, and not just off of it. It
should mean recovering this appreciation for the earth, and all
therein, that the philosophers of old had, even while we use the
environment to better our lives. I hope, through this set of
books, we come to know what it means to be a better manager
of the ecological balance, to understand what it means to mas-
ter the balance of Creation's elements.
Rainier Maria Rilke, the great German poet, says it very well:
"Everything is far and long gone by. I think that the star glitter-
ing above me has been dead for a million years. I would like to
step out of my heart and go walking beneath the enormous
sky. I would like to pray. And surely of all the stars that per-
ished long ago, one still exists. I think that I know which one it
is." It is my hope, that because we cared and took action, centu-
ries from now, our descendants too would come out and walk
beneath the sky and say: our planet still exists.
As you will see in the introductory essay in Chapter 1, 1 write
about the elements of the world. I find it is only fitting to begin
with Earth, with land and soil from which so much of life
springs forth. The Western zodiac recognizes people influenced
by the Earth signs as practical and dependable, while the Chi-
nese also add that, because of their grounded discipline, these
souls are masters of their future. We view the Earth as our
foundation, as our sustenance; in many cultures, "Mother
Earth" is a common phrase. We build our homes on solid
ground, and plant our food on fertile soil. From the Earth we
harvest the lumber and mine the metals that build our civiliza-
tion; from the Earth comes life, which sustains humanity.
Imperiling that future is the consequence of poor land use and
development. Good ecological management must be a critical
component of good use of land. Social justice too-the fair allo-
cation of land and its resources-is essential. We need not look
further than Ondoy in 2009 to see the consequences of poor
land use and development. Majority of the typhoon's victims
lived along the Pasig riverbanks, or built their homes in low-
lying areas. Some of these homes were built by property
developers despite (or even willfully ignoring) warnings about
flood risk. Other homes were built by informal settlers who
had no place to go, and settled instead on lands claimed by no
one - precisely because those lands were at risk of flood or
other natural calamities. The result was therefore a tragedy,
which we must now make sure should not be repeated.
Agriculture faces a different threat: its sustainability as an eco-
nomic and household enterprise is in question. Climate change,
ecological degradation, and bad macroeconomic policies have
made farming economically challenging. As urban and rural
lands go fallow and become unproductive, economic and social
pressures invariably begin encroaching on ecology. Natural
forests are cleared for pasture or subdivisions; industries ex-
pand towards riverbanks, lakeshores, wetlands, and coastlines,
thereby threatening natural habitats of flora and fauna
important to Philippine biodiversity and ecology. What is sad
is that, all over the world, loss of diversity of life is threatening
the very diversity of humanity, as the latter depends on the
former.
After decades of environmental advocacy, I have come to con-
dude that the most important policy that government can
adopt and implement to ensure a good and sound environment
is a land use policy that is sustainable, environmentally
friendly, and socially just. Good land use and development
benefits both rural and urban development, including food
security, by protecting fertile lands and ecologically-sensitive
places while identifying those areas appropriate for housing,
commercial, and industrial zones. The real solution is good
land use policy implemented by the relevant units of
government, the private sector, and communities.
This cooperative effort should be driven down to the ground as
much as possible, devolving from national to local government
units (LGUs). LGUs must take the lead in an integrated land
use and environmental management plan, because it is their
constituents-farmers, workers, and residents alike-who are
directly affected by socio-economic and environmental policy.
Land use planning, for example, can become a town hall exer-
cise as much as an expert's exercise, soliciting input from af-
fected residents (especially informal settlers in the case of reset-
tlement), land use experts, and ecologists and other environ-
mentalists, in establishing zoning and housing development
plans which are socially equitable and environmentally sensi-
tive.
There is a Chinese proverb that goes, "The miracle is not to fly
in the air, or to walk on the water, but to walk on the earth."
With respect to the Earth as our Mother, we owe her as her
children to mature as her stewards, and walk by her side, in-
stead of being in her cradle forever.
Philippine Environmental Law
Philippine environmental law is rapidly changing, with new
national policies, laws, regulations and local ordinances added
to the legal landscape every year. There are clear trends in the
evolution of the legal framework, from pre-1970s laws that en-
couraged resource exploitation to the shift in focus to conserva-
tion beginning in the 1980s. There was a significant surge in
environmental legislation and jurisprudence after the regime
change in 1986 that emphasized stakeholders' participation
and the basic right to a clean environment. It is inevitable that
there are gaps, overlaps and conflicts among these instruments
as they evolved over time and overlapped in subject matter.
Aside from the legal instruments that deal directly with natural
resources and environment, there are numerous sectoral laws
and policies on agriculture, tourism, economic incentives and
taxes, infrastructure development, transportation, international
trade, urban and land-use planning, housing development, etc.,
that have significant impacts on the protection of the environ-
ment and use of natural resources.
For the law practitioner, policymaker, student, stakeholder or
general public, keeping up with the changes in the legal
framework is a challenge, given the number of sources, fre-
quency of changes and accessibility of the materials. It is an
even more difficult challenge to understand and apply the
various instruments separately or together to address a
particular environmental problem or case.
In 1991, this author published Law and Ecology: a compilation of.
Philippinelaws and internationaldocuments pertaining to ecology,
to help law practitioners and students navigate through this
relatively new field. There have been several textbooks pub-
lished since then, combining learned commentaries with
compilations of laws and regulations. In 2003, Prof. Atty.
Antonio A. Oposa, Jr. published A Legal Arsenal for the
Philippine Environment, which has served as the 'weapon' of
choice of advocates in the battle to protect the environment.
The Philippine Judicial Academy has also supported a number
of compilations of laws and cases together with partners,
including the Haribon Foundation.
Approach
There are two major challenges to writing an environmental
law textbook in the Philippines: First, to keep it up to date with
the almost daily changes in new national and local legal in-
struments; and second, to present the materials in an interest-
ing and realistic manner that captures the interplay of the laws
as they apply to particular cases. Because of the first challenge,
no textbook can be complete in recording every legal instru-
Law and Ecology: A Compilation of Philippine Laws and International Documents

Pertaining to Ecology, in Legal Rights and Natural Resources Center (Antonio
G.M. La Vifta, ed., 1991). [Published by the Cacho Publishing House.]
ment. The second challenge also necessarily limits the focus of
discussions to particular problems, which call for the applica-
tion of select provisions of the relevant laws and cases.
The approach to this textbook in Volume One, from Chapter
Four to Eleven, is to present independent modules, beginning
with an Environmental Situationeras environmental issues occur
in the real world (based on one or a composite of actual cases
or field experiences). The reader is expected to feel immediate-
ly engaged by the environmental challenges presented, and the
interaction of interests of the parties involved. This is followed
a section on Legal Analysis, which is a quick survey of applica-
ble provisions of laws and relevant jurisprudence. The reader
is invited to analyze, interpret and apply these legal framework
together to the problem presented. It is the interplay of these
laws and decisions that is critical to learning, more than a de-
tailed discussion of each law separately in its entirety.
A discussion of the legal framework is not enough. In the end,
the reader needs to ask: did the law address the environmental
problem and/or give justice to the parties? The Policy Analysis
part will make the reader reflect on the policy-making aspect.
Thinking like a policy-maker, s/he has to understand and con-
sider the underlying physical and social science that help en-
lighten how the actors make decisions that affect the physical
environment, as well as how policies, laws and regulations can
be crafted to influence how these actors should work in order
to achieve desired environmental and social objectives. Finally,
there is a FurtherDiscussion section in every chapter that invites
the reader to look at related issues and helpful concepts.
Volume Two is composed of two parts: application of
international law, and application of the new Rules of Pro-
cedure for Environmental Cases. In the past quarter century,
Philippine environmental law and policy has closely followed
developments in international law dealing with environmental
issues. Many of the country's environmental laws were passed
in direct response to or in compliance with the country's
commitments under international agreements or cooperation.
Even the Rules of Procedure on Environmental Cases
promulgated by the Supreme Court in 2010 had partly been a
result of the Court's exposure to developments in environ-
mental justice in other countries and under international law.
This textbook is designed as a law school textbook to guide

classroom discussion, but it can also be useful for law practi-
tioners, policynakers and the general public. The two-volume
approach gives the option to teach the second volume as sepa-
rate special topics on international environmental law and on
the new Rules of Procedure for Environmental Cases, or as an
advanced environmental law course. Volume One can be ex-
panded in future updates with additional 'modules' tackling
new environmental problems or issues.
Antonio G.M. La Vifia

Quezon City, Philippines 2012
Volume One:
National Laws and Policies

TABLE OF CONTENTS
CHAER ONE
Overview of the Natural, Socio-Economic and

Political Landscape ....................................................................... 1
1.1 Land, Sea, and the Forces of Nature .................................. 1
1.2 Socio-Economic Context ................................................ 4
1.3 Legal Framework .......................................................... 6
1.3.1 Constitution ................................................................. 7
1.3.2 National Legislation ........................................... 47
1.3.3 International Agreements ................................. 70
1.4 Further Discussion ........................................................ 77
CHAPFER TWO
Institutional Framework for Environment and
Natural Resources Management ................................................. 122
2.1 Institutional Framework ................................................. 122
2.1.1 Executive Branch .................................................... 122
2.1.2 Congress and Local Legislature ........................... 142
2.1.3 Judiciary .................................................................. 142
2.1.4 Quasi-Judicial Agencies ........................................ 149
2.1.5 Non-Government Institutions .............................. 149
CHAFFER THREE
Environmental Impact Assessment and

Development Planning................................................................. 153
3.1 Rationale ............................................................................ 153
3.2 Legal Framework ............................................................. 157
3.2.1 Local Development Planning ............................... 198
3.3 Policy Analysis .................................................................. 205
3.3.1 Philippine Development Plan
(2011-2016) ............................................................... 205
CHAPrER FOUR
Forests and Forestland Management ......................................... 208

4.1 Environm ental Situationer ............................................. 208
4.2 Legal Analysis .................................................................. 209
4.2.1 Land Classification ................................................. 209
4.2.2 Land Use in Forest Land ....................................... 216
4.3 Policy Analysis ................................................................. 255
4.3.1 Evolution of Forest Policies ................................... 255
4.3.2 Logging M oratorium .............................................. 262
4.4 Further Discussion ........................................................... 264
4.4.1 Illegal Logging or Subsistence
Livelihood ............................................................... 264
CHA R FIVE
Wildlife and Biodiversity Conservation .................................... 273

5.2 Legal Analysis .................................................................. 273
5.2.1 What is W ildlife? .................................................... 273
5.3 Policy Analysis ................................................................. 288
5.4.1 Biosafety and Alien Invasive
Species ...................................................................... 293
5.4.2 Bioprospecting ........................................................ 297
CHAPTER SIX
Protected Areas and Watershed Management ......................... 300

6.1 Environmental Situationer ............................................. 300
6.2 Legal Analysis .................................................................. 301
6.3 Policy Analysis ................................................................. 317
6.3.1 Governance ............................................................. 317
CHAPTER SEVEN
Fisheries and Marine Resources ................................................. 333
7.2 Legal Analysis .................................................................. 334
xviii
7.3 Policy Analysis ................................................................. 346
CHAPTEM EIGHT
Mineral Resources Extraction ...................................................... 365

8.2 Legal Analysis .................................................................. 366
8.3 Policy Analysis ................................................................. 425
8.3.1 Contribution of the Mining
Industry to the Economy ....................................... 425
8.3.2 Environmental and Social Costs .......................... 433
8.4.1 Is Responsible Mining Possible in
the Philippines? ...................................................... 437
8.4.2 What Operational Conditions Must
be Met to Conduct Responsible
Mining in the Philippines? .................................... 440
8.4.3 What Actions must the Government
Take Towards Management of
Responsible Mining? .............................................. 441
8.4.4 Executive Order No. 79 ......................................... 444
CHAER NINE
W aste Management and Sanitation ............................................ 455

9.2 Legal Analysis .................................................................. 458
9.3 Policy Analysis ................................................................. 467
CHAPTER TEN
Industrial, Air and W ater Pollution ........................................... 487

10.1 Environmental Situationer ........................................... 487
10.2 Legal Analysis ................................................................ 488
10.3 Policy Analysis ............................................................... 493
10.4 The Clean Air Act .......................................................... 495
10.5 The Clean Water Act ..................................................... 516
10.6 Further Discussion ........................................................ 525
CHAPTER ELEVEN
Climate Change and Disaster Risk Reduction

and Management .......................................................................... 536
11.1 Environmental Situationer ............................................ 536
11.2 Further Discussion ......................................................... 546
ANNEXA
Survey of Writs of Kalikasan ....................................................... 556

CHAPTER ONE
Overview of the Natural, Socio-Economic

and Political Landscape
1.1 Lan4 Sea, and the Forces of Nature

The Philippines is an archipelago of more than 7,100 islands,
with one of the longest coastlines (36,289 km) of any country.
The total land area is almost 300,000 square kilometers, but
this pales in comparison to the size of the marine territory of
about 2.2 million square kilometers, which includes the
exclusive economic zone.1 The islands are mostly
mountainous, with the larger islands having narrow to
extensive plains highly suited for agriculture.
The Philippines is one of 17 countries with the most diverse
biological resources.2 The Philippine Endemic Species
Conservation Project has found several new species and
new distribution records of known species in the past five
years. The international community has taken notice: In
2009, Birdlife International chose as its flagship species the
Cebu Flowerpecker (Dicaeum quadricolor), long thought to be
extinct and rediscovered in 1992. The International Institute
for Species Exploration 4 chose newly discovered Philippine
species among its top 10 new discoveries, namely the
Attenborough's Pitcher (Nepenthes attenboroughit)in 2010 and
1 Mary Ann Palma, The Philippines as an Archipelagic and Maritime Nation:

Interests, Challenges and Perspectives (Rajartanam School of International
Studies, Working Paper No. 182, 2009).
2 Ian A. Bowles, R.E. Rice, RA. Mittermeier, and G.A.B. da Fonseca, Logging
and Tropical Forest Conservation (1998).
3 Panay Eco-social Conservation Project, in Philippine Initiative for
Conservation of the Environment and the people (2010). http://www.
panaycon.org/Pages/New-species.html (last visited July 24,2012).
4 The International Institute for Species Exploration (2010, 2011).
2 I PHILIPPINE LAW AND ECOLOGY
the Sierra Madre Spotted Monitor (Varanus bitatawa) in 2011.

The California Academy of Sciences has undertaken its
largest expedition in the Philippines in the summer of 2011.
The Philippine Biodiversity Expedition was the first
expedition to make a comprehensive survey of both
terrestrial and marine diversity in the country. The
expedition, composed of American and Filipino scientists,
reported more than a hundred new species after only three
weeks of surveys.5
There are some 7.67 million hectares (76,700 sq. km.) of
forests left 6 from a high of 20 million hectares in the 1900s.
Up until the 1970s, the country was a major exporter of logs.
Beginning in the late 1970s, commercial harvesting of natural
timber became more and more regulated, until the early
1990s when timber license agreements were either cancelled
or allowed to expire, with no new licenses granted.
However, illegal logging in both small and large scale
continues to this day. In 2009 alone, over a million board
feet of lumber (about 100 ten-wheeler trucks) was confiscated
by combined units of the Armed Forces and the Isabela
Provincial Government after raiding three lumber yards and
log ponds in the Northern Sierra Madre Natural Park
(NSMNP), the last remaining major natural forest area in the
country.
The Philippines stands among the richest countries in terms
of mineral wealth. According to the Chamber of Mines, 7 the
country's mineral reserves (gold, copper, nickel, iron,
chromium and aluminum) are estimated to be worth PhP 47
5 California
Academy of Sciences (2011), http'J/www.calacademy.org/sciencel
hearst/.
6Forest Management Bureau (2010).
7
Chamber of Mines (2011), http://business.inquirer.net/26151/philippine-
mining-wealth-seen-at-840b.
NATIONAL LAWS AND POUClES I3
trillion (US$840 billion). Significant oil and gas reserves have

also been discovered in recent years.
Perhaps the most valuable resources are in the seas. The
Philippines is internationally recognized as the center of
marine biodiversity because of its unique habitats that host a
rich variety of species. The country is located at the apex of
the Coral Triangle, which is often referred to as the "Amazon
of the seas." Despite escalating problems of overfishing,
fisheries productivity still increased over the years, because
of the expansion of seaweed farming and aquaculture. The
natural beauty of corals and reef organisms attract thousands
of tourists, as well as unscrupulous collectors. Despite broad
regulations that ban the collection of marine wildlife, illegal
harvesting is rampant, driven largely by the demands of
international trade. In May 2011, the Department of
Agriculture-Bureau of Fisheries and Aquatic Resources (DA-
BFAR) reported the seizure of 161 dead sea turtles and over
21,000 seashells and black corals in warehouses in
Zamboanga City. Experts estimate that about 7,000 hectares
of a "reef complex" were destroyed based on the harvest.8
Based on news reports, more than a thousand foreign
poachers have been arrested for illegally catching marine
turtles and other species off Palawan from 1995 to 2008. At
least one report of poaching by foreign fishermen was
recorded in 2010, and two incidents in the first quarter of
2011.9
8 Jocelyn Uy, More Black Corals Seized, in Philippine Daily Inquirer (2011),
http://newsinfo.nquirer.net/9209/more-black-comls-seized.
9Adraneda(2007).
Mar D. Meruenas, Stronger Law Enforcement Pushed for Palawan, Tawi-Tawi
Seas, GMA News TV (June 8, 2010), http://www.ecologyasia.com/news-
archives/20fijm-10/gma_100608_1.htm (last visited June 2012).
GMA New TV, Philippine Authorities Nab 6 Ctinese Poachers Off Palawan
(March 25, 2011), http://www.gmanews.tv/story/216153/regions/phl-autho
rities-nab-6-chinese-poachers-off-palawan (last visited June 2012).
4 I PHILIPPINE LAWAND ECOLOGY
The rich bounty from nature, however, is also regularly
dampened by natural calamities. The Philippines ranks 3rd
among the most vulnerable countries to climate change,
based on a study by the United Nations University Institute
for Environment and Human Security. 10 About 20 typhoons
affect the country each year, with half making landfall that
causes tremendous damage to life, livelihoods and the
natural ecosystem. The country is also along the Pacific ring
of fire, which means that volcanic eruptions and earthquakes
are normal occurrences, sometimes with devastating
consequences. Climate change and the effects of weather
cycles, such as the El Nino and La Nina phenomena, have
brought billions of pesos in damages from floods, droughts,
and increase in sea surface temperature. From 1990 to 2009,
value of damages due to weather and climate-related
disasters totaled $4,813 million or an average of $240.7
million per year. In the 2000s, total damages were $2,121,
million, which were lower than the total damages of $2,602
million in the 1990s.11
1.2 Socio-Economic Context
In 2010, the country's population stood at 94 million; it is
expected to reach 103 million by 2015 and 141.6 million by
2040.12 About half of the population lives in urban areas
(49%) and the rate of urbanization is estimated at around
Redempto Anda, 34 Endangered Turtles Rescued in South Palawan, Inquirer. net

(February 6, 2011), http://services.inquirer.net/print/print.php?artide-id-
20110206-318835 (last visited June 2012).
10United Nations University Institute for Environment and Human Security,
World Risk Report (2011) http://www.ehs.unu.edu/artide/read/worldrisk
report-201.
11Danlo Israel, Weather and climate-related disasters:the cost of inaction
(Philippine Institute for Development Studies, Policy Note No. 2010-12,
2010).
12 National Statistical Coordination Board, http://www.nscb.gov.ph/ secstat/d_
popnProj.asp (last visited June 2012).

NATIONAL LAWS AND POUCIES I 5
2.3% until 2015. In a recent survey by Time magazine 3,

Metro Manila is ranked highest in population density at
(46,000 persons/sq. mile = x persons/sq. km.), nearly twice
that of New York City. Metro Manila ranked 10th in the most
populous cities in the world (population 16.3 million) and 9th
among the fastest growing cities (additional 3.29 million in
2025).
In 2007, Goldman Sachs Global Economic Group ranked the
Philippines among the Next-11 emerging global economic
powerhouse after the BRIC countries (Brazil, Russia, India
and China). Despite the recent and continuing global
economic slowdown, and the frequent domestic political
troubles, the prospect for economic growth for the
Philippines is positive. In 2010, per capita gross domestic
product was around $3,500, broken down by sector as
follows: agriculture and fisheries (15%), forestry (0.06%),
industry (30%) and services (55%). The Philippine economy
has traditionally been based on agriculture and natural
resources, but in the past decade this has shifted to light
industry and services, as exemplified by the business process
outsourcing (BPO) sector where the country ranks 3rd of the
total BPO market, with 15% share. In the ENR sector, there
has been a marked shift from utilization of natural resources
to providing the foundation for services (such as tourism)
and industry (by providing the needed water, power, etc.).
However, despite the positive outlook, the unemployment
rate is estimated at 7.3%, and more than a quarter of the
population (26.5%) lives in poverty. 14 The disparity in
income between the rich and poor is significant, as measured
by the Gini coefficient (45.8%, as of 2006 estimate).
13 Time (2011).
14 National Statistical Coordination Board (2010).
6 1 PHILIPPINE LAW AND ECOLOGY
Former NEDA Director-General Cielito Habito15 charac-

terized the country's economic growth in the past two
decades as "slow and erratic," and "narrow, shallow and
hollow," where capital formation is concentrated in a few
industries and regions, export growth is based mostly (>70%)
in garments and electronics, and output growth does not
generate jobs or reduce poverty. He counseled that the
country is faced with the twin challenge of accelerating and
maintaining economic growth, and making sure that growth
involves and benefits a broad spectrum of sectors throughout
the country, because past economic growth has marginally
benefited the poor.
Economic growth and poverty are two cross-cutting themes
that will be referred to in the succeeding chapters because
they are central to the issues of natural resources utilization
and equitable access to natural resources. Development
planning is touched upon again in Chapter Three.
1.3 Legal Framework
The current Constitution, adopted in 1987, is the highest law

in the country. There are three branches of government: a
bicameral Congress enacts national laws; the President, as
head of the Executive Branch, implements these laws directly
or through implementing regulations that must be consistent
with legislation; the Supreme Court heads the judiciary,
which is the final arbiter of legal conflicts and interpreter of
the Constitution. Chapter Two discusses the institutional
framework in greater detail.
In the hierarchy of laws, all national laws and executive
implementing regulations must be consistent with the
Constitution, and implementing regulations must be
15Cielito Habito, Can we grow twice as fast?, in Inquirer.net (2010),

http://opinion.inquirer.net=22135/can-we-grow-twice-as-fast
consistent with the laws being implemented, and
implementation must be within the delegated powers given
to the President and government agencies by the
Constitution and the specific laws.
1.3.1 Constitution
The Constitution defines the national territory, which
"comprises the Philippine archipelago, with all the islands
and waters embraced therein.., including its territorial sea,
the seabed, the subsoil, the insular shelves, and other
submarine areas. The waters around between, the connecting
the islands of the archipelago, regardless of their breadth and
dimensions, from part of the internal waters of the
Philippines.' 6 In 2009, Republic Act No. 9522 established
the archipelagic baselines of the country, declaring a 'regime
of islands' in the Kalayaan Group of Islands and
Scarborough Shoal17 in the South China Sea, which the
Philippines refers to as West Philippine Sea. The Philippines
is a party to the UN Convention on the Law of the Sea
(UNCLOS) and has generally moved to interpreting the
Constitution to be consistent with UNCLOS.18
The national territory and its relation to UNCLOS is further
discussed in Volume Two. The relevant provisions in the
Constitution are presented in Table 1, noting important
relevant laws and cases that are elaborated further in the rest
of the book as they relate to specific environmental issues.
16
Const (1987), art. 1 (Phil.).
7
1 Rep. Act 9522, §2 (Phil.).
IsRodolfo C. Severino, Where in the World is the Philippines:Debating its national
territory,Institute of Southeast Asian Studies, Singapore (2011).
Mary Ann Palma, The Philippines as an Archipelagic and Maritime Nation:
Interests, Challenges and Perspectives (Rajartanamn School of International
Studies, Working Paper No. 18Z 2009).
Table 1: Constitutional provisions relevant to

ENR management
Relevant Laws and

Constitution
Cases
Article I. The national territory Law:
National comprises the Baselines of Territorial
Territory Philippine Sea Act, R.A. No. 9522
archipelago, with all (2009)
the islands and waters
embraced therein, and Case:
all other territories Magallona, et al. vs.
over which the Executive Secretary
Philippines has Ermita,et al., G.R. No.
sovereignty or 187167, July 16, 2011
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.
Article IL Section 15. The State Laws: (See Table 2)
Declaration shall protect and
of State promote the right to Case:
Principles health of the people Hilarion M. Henares,
and Policies and instill health Jr. vs. LTFRB and
consciousness among DOTC, G.R. No.
them. 158290, October 23,
1 2006.
Constitution Relevant Laws and

I _ I__ Cases
Section 16. The State Laws: (See Table 2)
shall protect and
advance the right of Case:
the people to a Minors Oposa, et al. vs.
balanced and healthful DENR Secretary
ecology in accord with Factoran, et al., G.R.
the rhythm and No. 101083, July 30,
harmony of nature 1993, discussed in this
section.
Felipe Ysmael, Jr. vs.

Secretary of
Environment and
Natural Resources,
G.R. No. 79538 October
18.o 1990.
Section 22. The State Laws:
recognizes and Indigenous People's
promotes the rights of Rights Act, R.A. No.
indigenous cultural 8371 (1997)
communities within
the framework of Cases:
national unity and Cariflo vs. Insular
development. Government, 212 US
449, February 23, 1909
Cruz vs. NCIP, G.R.

No. 135385, December
6,2000
Province of North
Cotabato vs.
Government of the
Republic of the
Philippines, G.R. Nos.
183591,183752, 183893,
______________ L
183951 & 183962,
Relevant Laws and

Constitution Cases
October 14, 2008.
Section 25. The State Law:
shall ensure the Local Government
autonomy of local Code, RA. No. 7160
governments. (1991)
Case:
SJS vs. Atienza, G.R.
No. 156052, March 7,
2007
Article III. Section 7. The right of Cases:
Bill of Rights the people to Province of North
information on Cotabato vs.
matters of public Government of the
concern shall be Republic of the
recognized. Access to Philippines, GR Nos.
official records, and to 183591,183752,183893,
documents and papers 183951 & 183962,
pertaining to official October 14, 2008.
acts, transactions, or
decisions, as well as to Chavez vs. Public
government research Estates Authority and
data used as basis for Arnari Coastal Bay
policy development, Development Corp.,
shall be afforded the GR No. 133250, July 9,
citizen, subject to such 2002.
limitations as may be
provided by law. Valmonte vs.
Belmonte, G.R. No.
74930, February 13,
1989
Legaspi vs. CSC, G.R.

No. L-72119, May 29,
1987
Article X. Section 4. The Law:
Local President of the Local Government
NATiONAL LAWS AND POLICIES 1 11
1 Relevant Laws and

Constitution Cases
Government Philippines shall Code, R.A. No. 7160
exercise general (1991)
supervision over local
governments.
Provinces with respect Case:
to component cities Tano vs. Socrates, G.R.
and municipalities, No. 110249, August 21,
and cities and 1997
municipalities with
respect to component
barangays shall ensure
that the acts of their
component units are
within the scope of
their prescribed
powers and functions.
Section 5. Each local Law:
government unit shall Local Government
have the power to Code, R.A. No. 7160
create its own sources (1991), Sec. 18
of revenues and to
levy taxes, fees and
charges subject to such
guidelines and
limitations as the
Congress may
provide, consistent
with the basic policy
of local autonomy.
Such taxes, fees, and
charges shall accrue
exclusively to the local
grovernments.
Section 7. Local Laws:
governments shall be Electric Power
entitled to an Industry Reform Act of
equitable
=
share in the 2001, R.A. 9136 (2001),
. .
Relevant Laws and

Constitution
Cases
proceeds of the Section 66
utilization and
development of the Local Government of
national wealth within 1991, R.A. 7160 (1991),
their respective areas, Sections 289 to 294
in the manner
provided by law, Department of Energy
including sharing the Act of 1992, R.A. 7638
same with the (1992), Section 5(i)
inhabitants by way of Mining Act of 1995,
direct benefits. R.A. 7942 (1995),
4
Section 82
Section 15. There shall Laws:
be created
autonomous regions Revised Organic Act of
in Muslim Mindanao ARMM, R.A.
and in the Cordilleras 9054(2001).
consisting of
provinces, cities, Mindanao
municipalities, and Development
geographical areas Authority (MinDA)
sharing common and Act of 2010, RA No.
distinctive historical 9996, February 17,2010
and cultural heritage,
economic and social James L. Chiongbian et
structures, and other al vs. Oscar M. Orbos
relevant characteristics et al. G.R. No. 96754
within the framework June 22,1995
of this Constitution
and the national Sultan Mohamad Ali B.
sovereignty as well as Dimaporo vs.
territorial integrity of COMELEC, G.R. No.
the Republic of the 93201-04 June 26,1990
Philippines.
Article )i. Section 1. The goals of Law:
National the national economy Reorganizing the
Economy are a more equitable National Economic and
NATIONAL LAWS AND POLICIES I 13

Cases
and distribution of Development
Patrimony opportunities, income, Authority, EO 230,
and wealth; a approved July 22,1997.
sustained increase in
the amount of goods Case:
and services produced Manila Prince Hotel v
by the nation for the GSIS, G.R. No. 122156
benefit of the people; February 3, 1997
and an expanding
productivity as the
key to raising the
quality of life for all,
especially the
underprivileged.
xxx
Section 2. All lands of the public Cases:
domain, waters, Aranda vs. Republic.
minerals, coal, GR No. 172331, August
petroleum, and other 24, 2011
mineral oils, all forces
of potential energy, Miners Association of
fisheries, forests or the Philippines, Inc. vs.
timber, wildlife, flora Factoran, Jr., G.R. No.
and fauna, and other 98332, January 16,1995
natural resources are
owned by the State. LA BUGAL-B'LAAN
With the exception of TRIBAL
agricultural lands, all ASSOCIATION, INC.,
other natural vs. Ramos, G.R. No.
resources shall not be 127882. December 1,
alienated. The 2004
exploration,
development, and Heherson Alvarez vs.
utilization of natural PICOP Resources, G.R.
resources shall be Nos. 162243,164516 &
under the full control 171875, December 3,
and supervision of the 2009
Relevant Laws and

FConstitution
- I Cases
State. The State may Republic v. Quasha,
directly undertake G.R. No. L-30299, Aug.
such activities, or it 17, 1972
may enter into co- Republic vs. Pagadian
production, joint City Timber, G.R. No.
venture, or 159308, September 16,
production-sharing 2008
agreements with
Filipino citizens, or
corporations or
associations at least
sixty per centum 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 Law:
the nation's marine The Philippine
wealth in its Fisheries Code, R. A.
archipelagic waters, No. 8550 (1998)
territorial sea, and varticularlv Charter II
NATIONAL LAws AND POLICIES J 15

I _ I__ Cases I
exclusive economic Sec. 5 10, & 11 and
zone, and reserve its Chapter VI:
use and enjoyment Prohibitions and
exclusively to Filipino Penalties, Sec. 86-107
citizens.
The Congress may, by Laws:
law, allow small-scale The Philippine
utilization of natural Fisheries Code, R.A.
resources by Filipino No. 8550 (1998), Sec. 17
citizens, as well as &18
cooperative fish
farming, with priority Agriculture and
to subsistence Fisheries
fishermen and fish- Modernization Act of
workers in rivers, 1997, R.A. No. 8435,
lakes, bays, and Sec. 13 & 14
lagoons.
The President may Law;
enter into agreements Mining Act of 1995,
with foreign-owned R.A. 7942 (1995),
corporations involving Section 18.
either technical or
financial assistance for Cases:
large-scale Miners Association of
exploration, the Philippines, Inc. vs.
development, and Factoran, G.R. No.
utilization of minerals, 98332 January 16,1995
petroleum, and other
mineral oils according Apex Mining Co. Inc.
to the general terms vs. Southeast
and conditions Mindanao Mining
provided by law, Corp. G.R. No. 152613
based on real & No. 152628, June 23,
contributions to the 2006
economic growth and
general welfare of the Didipio Earth-Savers'
country. In such Multipurvose
Relevant Laws and

Constitution
Cases
agreements, the State Association et al. vs.
shall promote the Secretary of DENR,
development and use G.R. No. 157882, March
of local scientific and 30,2006
technical resources. LA BUGAL-B'LAAN
TRIBAL
The President shall ASSOCIATION, INC.,
notify the Congress of vs. Ramos, G.R. No.
every contract entered 127882, December 1,
into in accordance 2004
with this provision,
within thirty days
from its execution.
Section 3. Lands of the Law:
public domain are Indigenous People's
classified into Rights Act, R.A. No.
agricultural, forest or 8371 (1997)
timber, mineral lands
and national parks. Cases:
Agricultural lands of Cruz v NCIP, G.R. No.
the public domain 135385, December 6,
may be further 2000
classified by law
according to the uses Republic of the
to which they may be Philippines vs.
devoted. Alienable Naguiat, G.R. No.
lands of the public 134209, January 24,
domain shall be 2006
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
L8 ,C

Cases
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, the
Congress shall
determine, by law, the
size of lands of the
public domain which
may be acquired,
developed, held, or
leased and the
conditions therefor.
Section 4. The Law:

Congress shall, as The National
soon as possible, Integrated Protected
determine by law the Areas System Act, R.A.
specific limits of forest No. 7586 (1992)
lands and national
parks, marking clearly DENR Administrative
Relevant Laws and

Constitution Cases
their boundaries on Order No. 2008-24 -

the ground. Guidelines for the
Thereafter, such forest Assessment and
lands and national Delineation of
parks shall be Boundaries between
conserved and may Forestlands, National
not be increased nor Parks and Agricultural
diminished, except by Lands
law. The Congress
shall provide, for such DENR Administrative
period as it may Order No. 1995-15-
determine, measures Revised General
to prohibit logging in Guidelines in the
endangered forests Implementation of the
and watershed areas. Sub-classification of
Forestlands and Other
Inalienable Lands of
the Public Domain
Cases:
PICOP Resources vs.
Base Metals Mineral
Resources Corporation
G.R. No. 163509,
December 6,2006
Apex Mining vs.

Southeast Mindanao
Gold Mining G.R. No.
152613,152628, 152619-
152620,152870-152871,
June 23, 2006
Province of Rizal v
Exec Sec G.R. No.
129546, December 13,
2W05
NATIONAL LAWS AND POLICIES 1 19
Relevant Laws and

Constitution I Cases
Section 5. The State, Law:
subject to the The Indigenous
provisions of this Peoples Rights Act of
Constitution and 1997, RA No. 8371,
national development Sections 2,-5, 7-8, 12
policies and programs,
shall protect the rights Mining Act of 1995,
of indigenous cultural R.A. 7942 (1995),
communities to their Section 4 and 16
ancestral lands to
ensure their economic, Cases:
social, and cultural Nicasio I. Alcantara vs.
well-being. Commission on the
Settlement of Land
Problems, et al., G.R.
No. 145838, July 20,
2001.
Patricio Cutaran et al.

vs. DENR, G.R. No.
134958, January 31,
2001.
Mariano Tanenglean
vs. Silvestre Lorenzo et
al., G.R. No. 173415,
March 28, 2008.
Section 7. Save in Cases:
cases of hereditary Palacios vs. Vda. De
succession, no private Ramirez, G.R. No. L-
lands shall be 27952, February 15,
transferred or 1982
conveyed except to
individuals, Cheesman vs. IAC,
corporations, or G.R. No. 74833,
associations qualified January 21,1991
to acquire or hold
ConstitutionCae C Relevant Laws and

Cases
lands of the public
domain.
Article XIII. Section 6. The State Law:

Social Justice shall apply the Comprehensive
and Human principles of agrarian Agrarian Reform Law
Rights reform or of 1988, "CARP", R.A.
stewardship, No. 6657, as amended
whenever applicable by R.A. 9700
in accordance with Sec. 2, 4, 9, 10 & 22
law, in the disposition
or utilization of other Case:
natural resources, Gavino Corpuz vs. Sps.
including lands of the Grospe, G.R. No.
public domain under 135297, June 8, 2000.
lease or concession
suitable to agriculture,
subject to prior rights,
homestead rights of
small settlers, and the
rights of indigenous
communities to their
ancestral lands.
4
xxx 4
Section 7. The State Law:
shall protect the rights The Philippine
of subsistence Fisheries Code, R.A.
fishermen, especially No. 8550 (1998), Sec. 17
of local communities, & 18
to the preferential use
of the communal Agriculture and
marine and fishing Fisheries
resources, both inland Modernization Act of
and offshore. It shall 1997, R.A. No. 8435,
provide support to Sec. 13 & 14
such fishermen
through appropriate Comprehensive
technology and Agrarian Reform Law
NA~iONAL LAWS AND POLICIES 1 21
I 21
OnAL DPOUClES
Relevant
I.AWS
NA Laws and
Constitution I Cases
J.
research, adequate of 1988, 'CARP", R.A.
financial, production, No. 6657, as amended
and marketing by R.A. 9700, Sec. 2
assistance, and other
services. The State Case:
shall also protect, People vs. Maximo
develop, and conserve Maceren et al., G.R.
such resources. The No. L-32166 October
protection shall extend 18, 1977.
to offshore fishing
grounds of subsistence
fishermen against
foreign intrusion.
Fishworkers shall
receive a just share
from their labor in the
utilization of marine
and fishing resources.
Section 16. The right Laws:
of the people and their Local Government
organizations to Code, R.A. No. 7160
effective and (1991)
reasonable
participation at all Clean Water Act, R.A.
levels of social, No. 9275, (2004)
political, and
economic decision- Clean Air Act, R.A. No.
making shall not be 8749(1999)
abridged. The State
shall, by law, facilitate Ecological Solid Waste
the establishment of Management Act, R.A.
adequate consultation 9003 (2000)
mechanisms.
The Constitution guarantees the right of the people to

health and a "balanced and healthful ecology consistent
with the rhythm and harmony of nature." In the land-
mark case of Minors Oposa, et al. vs Factoran et al., the

Supreme Court declared that this right is paramount and
immediately enforceable, such that government agencies
can be compelled to perform their mandated functions to
protect the environment.
Minors Oposa, et al. vs. Factoran, et al.
GR No. 101083, July 30,1993
Davide, Jr., J.ponente
In a broader sense, this petition bears upon the right of

Filipinos to a balanced and healthful ecology which the
petitioners dramatically associate with the twin concepts of
"inter-generational responsibility" and "inter-generational
justice." Specifically, it touches on the issue of whether the
said petitioners have a cause of action to "prevent the
misappropriation or impairment" of Philippine rainforests
and "arrest the unabated hemorrhage of the country's vital
life-support systems and continued rape of Mother Earth."
The controversy has its genesis in Civil Case No. 90-777

which was filed before Branch 66 (Makati, Metro Manila)
of the Regional Trial Court (RTC), National Capital Judicial
Region. The principal plaintiffs therein, now the principal
petitioners, are all minors duly represented and joined by
their respective parents. Impleaded as an additional
plaintiff is the Philippine Ecological Network, Inc. (PENI),
a domestic, non-stock and non-profit corporation
organized for the purpose of, inter alia, engaging in
concerted action geared for the protection of our
environment and natural resources. The original defendant
was the Honorable Fulgencio S. Factoran, Jr., then
Secretary of the Department of Environment and Natural
Resources (DENR). His substitution in this petition by the
new Secretary, the Honorable Angel C. Alcala, was subse-
quently ordered upon proper motion by the petitioners.
The complaint was instituted as a taxpayers' class suit and
alleges that the plaintiffs "are all citizens of the Republic of
the Philippines, taxpayers, and entitled to the full benefit,

use and enjoyment of the natural resource treasure that is
the country's virgin tropical rainforests." The same was
filed for themselves and others who are equally concerned
about the preservation of said resource but are "so
numerous that it is impracticable to bring them all before
the Court." The minors further asseverate that they
"represent their generation as well as generations yet
unborn." Consequently, it is prayed for that judgment be
rendered: "...ordering defendant, his agents, repre-
sentatives and other persons acting in his behalf to -
(1) Cancel all existing timber license agreements

in the country;
(2) Cease and desist from receiving, accepting,
processing, renewing or approving new timber
license agreements." and granting the plaintiffs
"... such other reliefs just and equitable under
the premises."
xxx
The complaint focuses on one specific

fundamental legal right-the right to a
balanced and healthful ecology which, for the
first time in our nation's constitutional history,
is solemnly incorporated in the fundamental
law. Section 16, Article II of the 1987
Constitution explicitly provides:
'"SEC. 16. 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."
This right unites with the right to health,

which is provided for in the preceding section
of the same article:
'SEC. 15. The State shall protect and
promote the right to health of the people
and instill health consciousness among

them."
While the right to a balanced and healthful ecology is to be

found under the Declaration of Principles and State
Policies and not under the Bill of Rights, it does not follow
that it is less important than any of the civil and political
rights enumerated in the latter. Such a right belongs to a
different category of rights altogether for it concerns
nothing less than self-preservation and self-perpetuation-
aptly and fittingly stressed by the petitioners -the
advancement of which may even be said to predate all
governments and constitutions. As a matter of fact, these
basic rights need not even be written in the Constitution
for they are assumed to exist from the inception of
humankind. Ifthey are now explicitly mentioned in the
fundamental charter, it is because of the well-founded fear
of its framers that unless the rights to a balanced and
healthful ecology and to health are mandated as state
policies by the Constitution itself, thereby highlighting
their continuing importance and imposing upon the state a
solemn obligation to preserve the first and protect and
advance the second, the day would not be too far when all
else would be lost not only for the present generation, but
also for those to come -generations which stand to inherit
nothing but parched earth incapable of sustaining life.
xxx
The right to a balanced and healthful ecology carries with

it the correlative duty to refrain from impairing the
environment.
xxx
Conformably with the enunciated right to a balanced and

healthful ecology and the right to health, as well as the
other related provisions of the Constitution concerning the
conservation, development and utilization of the country's
natural resources, then President Corazon C. Aquino
promulgated on 10 June 1987 E.O. No. 192, Section 4 of
which expressly mandates that the Department of

Environment and Natural Resources "shall be the primary
government agency responsible for the conservation,
management, development and proper use of the
country's environment and natural resources, specifically
forest and grazing lands, mineral resources, including
those in reservation and watershed areas, and lands of the
public domain, as well as the licensing and regulation of all
natural resources as may be provided for by law in order
to ensure equitable sharing of the benefits derived
therefrom for the welfare of the present and future
generations of Filipinos." Section 3 thereof makes the
following statement of policy:
xxx
Both E.O. No. 192 and the Administrative Code of 1987
have set the objectives which will serve as the bases for
policy formulation, and have defined the powers and
functions of the DENR.
It may, however, be recalled that even before the

ratification of the 1987 Constitution, specific statutes
already paid special attention to the "environmental right"
of the present and future generations. On 6 June 1977, P.D.
No. 1151 (Philippine Environmental Policy) and P.D. No.
1152 (Philippine Environment Code) were issued. The
former "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 fulfill the social,
economic and other requirements of present and future
generations of Filipinos, and (c) to insure the attainment of
an environmental quality that is conducive to a life of
dignity and well-being." As its goal, it speaks of the
"responsibilities of each generation as trustee and guardian
of the environment for succeeding generations." The latter
statute, on the other hand, gave flesh to the said policy.
Thus, the right of the petitioners (and all those they

represent) to a balanced and healthful ecology is as clear as
the DENR's duty-under its mandate and by virtue of its
powers and functions under E.O. No. 192 and the
Administrative Code of 1987-to protect and advance the
said right.
A denial or violation of that right by the other who has the
correlative duty or obligation to respect or protect the same
gives rise to a cause of action. Petitioners maintain that the
granting of the TLAs, which they claim was done with
grave abuse of discretion, violated their right to a balanced
and healthful ecology; hence, the full protection thereof
requires that no further TLAs should be renewed or
granted.
xxx
After a careful examination of the petitioners' complaint,
We find the statements under the introductory affirmative
allegations, as well as the specific averments under the
subheading CAUSE OF ACTION, to be adequate enough
to show, prima facie, the claimed violation of their rights.
On the basis thereof, they may thus be granted, wholly or
partly, the reliefs prayed for. xxx
The Oposa case is also famous internationally because the
Court recognized the right of the Petitioners, who were
minors, to sue as a class, on their own and as representatives
of "generations yet unborn" based on the concept of
intergenerationalresponsibility:
This case, however, has a special and novel element.
Petitioners minors assert that they represent their gene-
ration as well as generations yet unborn. We find no
difficulty in ruling that they can, for themselves, for others
of their generation and for the succeeding generations, file
a class suit. Their personality to sue in behalf of the
succeeding generations can only be based on the concept of
intergenerational responsibility insofar as the right to a
balanced and healthful ecology is concerned. Such a right,

as hereinafter expounded, considers the "rhythm and
harmony of nature." Nature means the created world in its
entirety. Such rhythm and harmony indispensably include,
inter alia, the judicious disposition, utilization, manage-
ment, renewal and conservation of the country's forest,
mineral, land, waters, fisheries, wildlife, off-shore areas
and other natural resources to the end that their explo-
ration, development and utilization be equitably accessible
to the present as well as future generations. Needless to
say, every generation has a responsibility to the next to
preserve that rhythm and harmony for the full enjoyment
of a balanced and healthful ecology. Put a little differently,
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.
Under the Constitution, all natural resources, including
minerals, waters, fisheries, belong to the State. This is popu-
larly referred to as the Regalian Doctrine. A claimant has the
burden of proving that the land has been classified by the
government as available for private ownership. The most
recent affirmation of this rule is the case of Aranda vs. Republic.
The Regalian Doctrine has been criticized for its historical
inaccuracy. Not all natural resources, especially land, are
necessarily owned by the State. More particularly, lands and
natural resources belonging to indigenous peoples and long-
term occupants fall outside the ambit of this doctrine.
Aranda vs. Republic
G.R. No. 172331, August 24, 2011
Villarama, Jr., J., ponente
Subject of a petition for original registration before the RTC
is a parcel of land situated in San Andres, Malvar,
Batangas with an area of 9,103 square meters and

designated as Lot 3730, Psc 47, Malvar Cadastre.
xxx
In support of the application, petitioner's sister Merlita A.

Enriquez testified that in 1965 her father Anatalio Aranda
donated the subject land to his brother (petitioner), as
evidenced by documents "Pagpapatunayng Pagkakaloob ng
Lupa" which she and her siblings executed on June 7, 2000.
She came to know the land for the first time in 1965 when
she was eight years old and his brother Ramon has been
tilling the land since then, planting it with rice and corn.
His brother did not introduce any permanent improve-
ment and also did not hire a tenant to work on the land.
As to the donation made by his father to his brother
Ramon, she recalled there was such a document but it was
eaten by rats.
Another witness, Luis Olan, testified that his father Lucio

Olan originally owned the land and that he had known
about this property since he was six (6) years old as he
used to accompany his father in going to the land. His
father farmed the land and planted it first, with rice, and
later corn. They had open, peaceful, continuous and
adverse possession of the land in the concept of owner
until his father sold the land in 1946 to Anatalio Aranda.
The children of Anatalio then took over in tilling the land,
planting it with rice and corn and adding a few coconut
trees. He does not have any copy of the document of sale
because his mother gave it to Anatalio.
xxx
The Property Registration Decree (P.D. No. 1529) provides

for original registration of land in an ordinary registration
proceeding. Under Section 14(1) thereof, a petition may be
granted upon compliance with the following requisites: (a)
that the property in question is alienable and disposable
land of the public domain; (b) that the applicants by
themselves or through their predecessors-in-interest have

been in open, continuous, exclusive and notorious
possession and occupation; and (c) that such possession is
under a bonafide claim of ownership since June 12, 1945 or
earlier.
Under the Regalian doctrine which is embodied in Section

2, Article XII of the 1987 Constitutior' all lands of the
public domain belong to the State, which is the source of
any asserted right to ownership of land. All lands not
appearing to be clearly within private ownership are
presumed to belong to the State. Unless public land is
shown to have been reclassified or alienated to a private
person by the State, it remains part of the inalienable
public domain. To overcome this presumption, incontro-
vertible evidence must be established that the land subject
of the application is alienable or disposable.
To prove that the land subject of an application for

registration is alienable, an applicant must establish the
existence of a positive act of the government such as a
presidential proclamation or an executive order; an
administrative action; investigation reports of Bureau of
Lands investigators; and a legislative act or a statute. The
applicant may also secure a certification from the
Government that the lands applied for are alienable and
disposable.
xxx
We have held that a person who seeks the registration of

title to a piece of land on the basis of possession by himself
and his predecessors-in-interest must prove his claim by
clear and convincing evidence, i.e., he must prove his title
and should not rely on the absence or weakness of the
evidence of the oppositors. Furthermore, the court has the
bounden duty, even in the absence of any opposition, to
require the petitioner to show, by a preponderance of
evidence and by positive and absolute proof, so far as
possible, that he is the owner in fee simple of the lands
which he is attempting to register. Since petitioner failed to

meet the quantum of proof required by law, the CA was
correct in reversing the trial court and dismissing his
application for judicial confirmation of title. xxx
Utilization of natural resources is generally reserved for
Filipinos, except for large-scale financial and technical
assistance agreements involving mineral and petroleum
resources. 19 In the case of fisheries, utilization is reserved
exclusively for Filipino citizens, with priority given to
subsistence fishermen and protection against foreign
intrusion.2 0
Miners Association of the Philippines vs. Factoran
G.R. No. 98332, January 16,1995
Romero, J., ponente
xxx
Herein controversy was precipitated by the change
introduced by Article XII, Section 2 of the 1987
Constitution on the system of exploration, development
and utilization of the country's natural resources. No
longer is the utilization of inalienable lands of public
domain through "license, concession or lease" under the
1935 and 1973 Constitutions allowed under the 1987
Constitution.
The adoption of the concept of jura regalia that all natural
resources are owned by the State embodied in the 1935,
1973 and 1987 Constitutions, as well as the recognition of
the importance of the country's natural resources, not only
for national economic development, but also for its security
and national defense, ushered in the adoption of the
constitutional policy of "full control and supervision by the
State" in the exploration, development and utilization of
19 Const (1987), art x, § 2 (Phil.).

20 Const (1987), art. XII, § 2; Art. XIfl, § 7 (Phil.).
the country's natural resources. The options open to the
State are through direct undertaking or by entering into co-
production, joint venture; or production-sharing
agreements, or by entering into agreement with foreign-
owned corporations for large-scale exploration, develop-
ment and utilization.xxx
Pursuant to the mandate of the above-quoted provision,
legislative acts were successively issued by the President in
the exercise of her legislative power.
To implement said legislative acts, the Secretary of the
Department of Environment and Natural Resources
(DENR) in turn promulgated Administrative Order Nos.
57 and 82, the validity and constitutionality of which are
being challenged in this petition. xxx
In this petition for certiorari, petitioner Miners Association

of the Philippines, Inc. mainly contends that respondent
Secretary of DENR issued both Administrative Order Nos.
57 and 82 in excess of his rule-making power under Section
6 of Executive Order No. 279. On the assumption that the
questioned administrative orders do not conform with
Executive Order Nos. 211 and 279, petitioner contends that
both orders violate the non-impairment of contract
provision under Article I, Section 10 of the 1987
Constitution on the ground that Administrative Order No.
57 unduly pre-terminates existing mining agreements and
automatically converts them into production-sharing
agreements within one (1) year from its effectivity date. On
the other hand, Administrative Order No. 82 declares that
failure to submit Letters of Intent and Mineral Production-
Sharing Agreements within two (2) years from the date of
effectivity of said guideline or on July 17,1991 shall cause
the abandonment of their mining, quarry and sand gravel
permits.
The economic policy on the exploration, development and
utilization of the country's natural resources under Article
XII, Section 2 of the 1987 Constitution could not be any
clearer. As enunciated in Article XII, Section 1 of the 1987

Constitution, the exploration, development and utilization
of natural resources under the new system mandated in
Section 2, is geared towards a more equitable distribution
of opportunities, income, and wealth; a sustained increase
in the amount of goods and services produced by the
nation for the benefit of the people; and an expanding
productivity as the key to raising the quality of life for all,
especially the underprivileged.
Upon the effectivity of the 1987 Constitution on February

2, 1987, the State assumed a more dynamic role in the
exploration, development and utilization of the natural
resources of the country. Article XII, Section 2 of the said
Charter explicitly ordains that the exploration,
development and utilization of natural resources shall be
under the full control and supervision of the State.
Consonant therewith, the exploration, development and
utilization of natural resources may be undertaken by
means of direct act of the State, or it may opt to enter into
co-production, joint venture, or production-sharing
agreements, or it may enter into agreements with foreign-
owned corporations 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.
xxx
The exploration, development and utilization of the

country's natural resources are matters vital to the public
interest and the general welfare of the people. The
recognition of the importance of the country's natural
resources was expressed as early as the 1984 Constitutional
Convention. In connection therewith, the 1986 U.P.
Constitution Project observed: "he 1984 Constitutional
Convention recognized the importance of our natural
resources not only for its security and national defense.
Our natural resources which constitute the exclusive

heritage of the Filipino nation should be preserved for
those under the sovereign authority of that nation and for
their prosperity. This will ensure the country's survival as
a viable and sovereign republic."
Accordingly, the State, in the exercise of its police power in
this regard, may not be precluded by the constitutional
restriction on non-impairment of contract from altering,
modifying and amending the mining leases or agreements
granted under Presidential Decree No. 463, as amended,
pursuant to Executive Order No. 211. Police Power, being
co-extensive with the necessities of the case and the
demands of public interest; extends to all the vital public
needs. The passage of Executive Order No. 279 which
superseded Executive Order No. 211 provided legal basis
for the DENR Secretary to carry into effect the mandate of
Article XII, Section 2 of the 1987 Constitution.
Nowhere in Administrative Order No. 57 is there any

provision which would lead us to conclude that the
questioned order authorizes the automatic conversion of
mining leases and agreements granted after the effectivity
of the 1987 Constitution, pursuant to Executive Order No.
211, to production-sharing agreements. The provision in
Article 9 of Administrative Order No. 57 that "all such
leases or agreements shall be converted into production
sharing agreements within one (1) year from the effectivity
of these guidelines" could not possibility contemplate a
unilateral declaration on the part of the Government that
all existing mining leases and agreements are auto-
matically converted into production-sharing agreements.
On the contrary, the use of the term "production-sharing
agreement" if they are so minded. Negotiation negates
compulsion or automatic conversion as suggested by
petitioner in the instant petition. A mineral production-
sharing agreement (MPSA) requires a meeting of the
minds of the parties after negotiations arrived at in good
faith and in accordance with the procedure laid down in
the subsequent Administrative Order No. 82.
We, therefore, rule that the questioned administrative

orders are reasonably directed to the accomplishment of
the purposes of the law under which they were issued and
were intended to secure the paramount interest of the
public, their economic growth and welfare. The validity
and constitutionality of Administrative Order Nos. 57 and
82 must be sustained, and their force and effect upheld.
Special provisions in the Constitution recognize autonomy in
Muslim Mindanao,21 which is implemented in the Expanded
Organic Act for the Autonomous Region in Muslim
Mindanao22 . The Autonomous Region in Muslim Mindanao
(ARMM) currently includes the provinces of Lanao del Sur
Maguindanao, Basilan (except Isabela City), Sulu, Tawi-
Tawi. Local autonomy is discussed further in Chapter Two.
The Constitution recognizes the rights of indigenous peoples

to their culture, institutions, and ancestral lands and
domain.23 There are 114 ethno-linguistic groups in the
Philippines, totaling about 14 million people, of which 63%
live in Mindanao. The Badjaos of the Sulu archipelago are
sea-oriented, boat dwelling, nomadic groups that move
around Sulu, Sabah, Sulawesi and Kalimantan.
Cariflo vs. Insular Government
212 U.S. 449 (1909)
Holmes, J., ponente

xxx The applicant and plaintiff in error is an Igorot of the
Province of Benguet, where the land lies. For more than
fifty years before the Treaty of Paris, April 11, 1899, as far
back as the findings go, the plaintiff and his ancestors had
held the land as owners. His grandfather had lived upon it,
and had maintained fences sufficient for the holding of
Const (1987), art X,§15 (Phil.).

21 Rep. Act 9054 (Phil.).
2 Const. (1987), art H,§22; art Xn, §6; art XIV, §17 (Phil.).
cattle, according to the custom of the country, some of the

fences, it seems, having been of much earlier date. His
father had cultivated parts and had used parts for
pasturing cattle, and he had used it for pasture in his turn.
They all had been recognized as owners by the Igorots, and
he had inherited or received the land from his father in
accordance with Igorot custom. No document of title,
however, had issued from the Spanish Crown, and
although, in 1893-1894 and again in 1896-1897, he made
application for one under the royal decrees then in force,
nothing seems to have come of it, unless, perhaps,
information that lands in Benguet could not be conceded
until those to be occupied for a sanatorium, etc., had been
designated-a purpose that has been carried out by the
Philippine government and the United States. In 1901, the
plaintiff filed a petition, alleging ownership, under the
mortgage law, and the lands were registered to him, that
process, however, establishing only a possessory title, it is
said.
xxx
We come, then, to the question on which the case was

decided below-namely, whether the plaintiff owns the
land. The position of the government, shortly stated, is that
Spain assumed, asserted, and had title to all the land in the
Philippines except so far as it saw fit to permit private titles
to be acquired; that there was no prescription against the
Crown, and that, if there was, a decree of June 25, 1880,
required registration within a limited time to make the title
good; that the plaintiff's land was not registered, and
therefore became, if it was not always, public land; that the
United States succeeded to the title of Spain, and so that
the plaintiff has no rights that the Philippine government is
bound to respect.
If we suppose for the moment that the government's

contention is so far correct that the Crown of Spain in form
asserted a title to this land at the date of the Treaty of Paris,
to which the United States succeeded, it is not to be
assumed without argument that the plaintiff's case is at an

end. It is true that Spain, in its earlier decrees, embodied
the universal feudal theory that all lands were held from
the Crown, and perhaps the general attitude of conquering
nations toward people not recognized as entitled to the
treatment accorded to those in the same zone of civilization
with themselves. It is true also that, in legal theory,
sovereignty is absolute, and that, as against foreign
nations, the United States may assert, as Spain asserted,
absolute power. But it does not follow that, as against the
inhabitants of the Philippines, the United States asserts that
Spain had such power. When theory is left on one side,
sovereignty is a question of strength, and may vary in
degree. How far a new sovereign shall insist upon the
theoretical relation of the subjects to the head in the past,
and how far it shall recognize actual facts, are matters for it
to decide.
The Province of Benguet was inhabited by a tribe that the

Solicitor General, in his argument, characterized as a
savage tribe that never was brought under the civil or
military government of the Spanish Crown. It seems
probable, if not certain, that the Spanish officials would not
have granted to anyone in that province the registration to
which formerly the plaintiff was entitled by the Spanish
laws, and which would have made his title beyond
question good. Whatever may have been the technical
position of Spain, it does not follow that, in the view of the
United States, he had lost all rights and was a mere
trespasser when the present government seized his land.
The argument to that effect seems to amount to a denial of
native titles throughout an important part of the island of
Luzon, at least, for the want of ceremonies which the
Spaniards would not have permitted and had not the
power to enforce.
The acquisition of the Philippines was not like the

settlement of the white race in the United States. Whatever
consideration may have been shown to the North
American Indians, the dominant purpose of the whites in
America was to occupy the land. It is obvious that,

however stated, the reason for our taking over the
Philippines was different. No one, we suppose, would
deny that, so far as consistent with paramount necessities,
our first object in the internal administration of the islands
is to do justice to the natives, not to exploit their country
for private gain. By the Organic Act of July 1, 1902, c. 1369,
§12, 32 Stat. 691, all the property and rights acquired there
by the United States are to be administered "for the benefit
of the inhabitants thereof." xxx The same statute made a
bill of rights, embodying the safeguards of the
Constitution, and, like the Constitution, extends those
safeguards to all. It provides that "no law shall be enacted
in said islands which shall deprive any person of life,
liberty, or property without due process of law, or deny to
any person therein the equal protection of the laws."
It is true that, by §14, the government of the Philippines is

empowered to enact rules and prescribe terms for
perfecting titles to public lands where some, but not all,
Spanish conditions had been fulfilled, and to issue patents
to natives for not more than sixteen hectares of public
lands actually occupied by the native or his ancestors
before August 13, 1898. But this section perhaps might be
satisfied if confined to cases where the occupation was of
land admitted to be public land, and had not continued for
such a length of time and under such circumstances as to
give rise to the understanding that the occupants were
owners at that date. We hesitate to suppose that it was
intended to declare every native who had not a paper title
a trespasser, and to set the claims of all the wilder tribes
afloat. xxx
Whatever the law upon these points may be, and we mean
to go no further than the necessities of decision demand,
every presumption is and ought to be against the
government in a case like the present. It might, perhaps, be
proper and sufficient to say that when, as far back as
testimony or memory goes, the land has been held by
individuals under a claim of private ownership, it will be
presumed to have been held in the same way from before

the Spanish conquest, and never to have been public land.
Certainly, in a case like this, if there is doubt or ambiguity
in the Spanish law, we ought to give the applicant the
benefit of the doubt.
It is important to understand the rights of indigenous
peoples in relation to environment and natural resources
policy because IPs have a different worldview of the relation
of humans to their environment. The Cariflo case recognized
that IPs never lost ownership of their lands (ancestral
domains) even after the Spaniards came to claim the
Philippines for the Spanish Crown.
In 1997, Congress passed the Indigenous People's Rights Act

(IPRA, Republic Act No. 8371) that formally recognized the
rights of IPs to their ancestral domains and ancestral lands.
The law followed the reasoning in Cario and gave flesh to
the provisions in the Constitution protecting the rights of IPs.
Sec. 2. Declaration of State Policies. xxx (b)The State shall
protect the rights of ICCs/lPs to their ancestral domains to
ensure their economic, social and cultural well being and
shall recognize the applicability of customary laws
governing property rights or relations in determining the
ownership and extent of ancestral domain;
xxx
Sec. 3. Definition of Terms. -
a) Ancestral Domains - Subject to Section 56 hereof, refer

to all areas generally belonging to ICCs/lPs comprising
lands,inland waters, coastal areas, and natural resources
therein, held under a claim of ownership, occupied or
possessed by ICCs/IPs, themselves or through their
ancestors, communally or individually since time
immemorial, continuously to the present except when
interrupted by war, force majeure or displacement by
NAllONAL LAWS AND POLICIES I 39
force, deceit, stealth or as a consequence of government

projects or any other voluntary dealings entered into by
government and private individuals, corporations, and
which are necessary to ensure their economic, social and
cultural welfare. It shall include ancestral land, forests,
pasture, residential, agricultural, and other lands indivi-
dually owned whether alienable and disposable or
otherwise, hunting grounds, burial grounds, worship
areas, bodies of water, mineral and other natural resources,
and lands which may no longer be exclusively occupied by
ICCs/IPs but from which their traditionally had access to
for their subsistence and traditional activities, particularly
the home ranges of ICCs/IPs who are still nomadic and/or
shifting cultivators;
xxx
h) Indigenous Cultural Communities/Indigenous Peoples

-refer to a group of people or homogenous societies
identified by self-ascription and ascription by other, who
have continuously lived as organized community on
communally bounded and defined territory, and who
have, under claims of ownership since time immemorial,
occupied, possessed customs, tradition and other
distinctive cultural traits, or who have, through resistance
to political, social and cultural inroads of colonization,
non-indigenous religions and culture, became historically
differentiated from the majority of Filipinos. ICCs/IPs shall
likewise include peoples who are regarded as indigenous
on account of their descent from the populations which
inhabited the country, at the time of conquest or
colonization, or at the time of inroads of non-indigenous
religions and cultures, or the establishment of present state
boundaries, who retain some or all of their own social,
economic, cultural and political institutions, but who may
have been displaced from their traditional domains or who
may have resettled outside their ancestral domains;
IPRA enumerated specific rights that IPs had and the formal
processes in which these rights were recognized by the State.
40 I PHILIPPINE LAW AND EcoLOGY
This appeared to run against the generally applied Regalian
doctrine that governed everyone else not considered IPs. On
this basis, former Supreme Court Justice Isagani Cruz
challenged the constitutionality of IPRA.
Isagani Cruz and Cesar Europa vs. Secretary of DENR, et al
G.R. No. 135385, December 6,2000.
Per curiam
Petitioners Isagani Cruz and Cesar Europa brought this
suit for prohibition and mandamus as citizens and
taxpayers, assailing the constitutionality of certain
provisions of Republic Act No. 8371 (R.A. 8371), otherwise
known as the Indigenous Peoples Rights Act of 1997
(IPRA), and its Implementing Rules and Regulations
(Implementing Rules).
xxx
Petitioners assail the constitutionality of the following
provisions of the IPRA and its Implementing Rules on the
ground that they amount to an unlawful deprivation of the
State's ownership over lands of the public domain as well
as minerals and other natural resources therein, in
violation of the regalian doctrine embodied in Section 2,
Article XII of the Constitution: xxx
Petitioners also contend that, by providing for an all-
encompassing definition of "ancestral domains" and
"ancestral lands" which might even include private lands
found within said areas, Sections 3(a) and 3(b) violate the
rights of private landowners.
In addition, petitioners question the provisions of the IPRA
defining the powers and jurisdiction of the NCIP and
making customary law applicable to the settlement of
disputes involving ancestral domains and ancestral lands
on the ground that these provisions violate the due process

clause of the Constitution.
Finally, petitioners assail the validity of Rule VII, Part II,

Section 1 of the NCIP Administrative Order No. 1, series of
1998, which provides that "the administrative relationship
of the NCIP to the Office of the President is characterized
as a lateral but autonomous relationship for purposes of
policy and program coordination." They contend that said
Rule infringes upon the President's power of control over
executive departments under Section 17, Article VII of the
Constitution.
After due deliberation on the petition, the members of the

Court voted as follows:
Seven (7) voted to dismiss the petition. Justice Kapunan

filed an opinion, which the Chief Justice and Justices
Bellosillo, Quisumbing, and Santiago join, sustaining the
validity of the challenged provisions of R.A. 8371. Justice
Puno also filed a separate opinion sustaining all challenged
provisions of the law with the exception of Section 1, Part
II, Rule III of NCIP Administrative Order No. 1, series of
1998, the Rules and Regulations Implementing the IPRA,
and Section 57 of the IPRA which he contends should be
interpreted as dealing with the large-scale exploitation of
natural resources and should be read in conjunction with
Section 2, Article XII of the 1987 Constitution. On the other
hand, Justice Mendoza voted to dismiss the petition solely
on the ground that it does not raise a justiciable
controversy and petitioners do not have standing to
question the constitutionality of R.A. 8371.
Seven (7) other members of the Court voted to grant the

petition. Justice Panganiban filed a separate opinion
expressing the view that Sections 3(a)(b), 5, 6, 7(a)(b), 8,
and related provisions of R.A. 8371 are unconstitutional.
He reserves judgment on the constitutionality of Sections
58, 59, 65, and 66 of the law, which he believes must await
the filing of specific cases by those whose rights may have

been violated by the IPRA. Justice Vitug also filed a
separate opinion expressing the view that Sections 3(a), 7,
and 57 of R.A. 8371 are unconstitutional. Justices Melo,
Pardo, Buena, Gonzaga-Reyes, and De Leon Jr., join in the
separate opinions of Justices Panganiban and Vitug.
As the votes were equally divided (7 to 7) and the
necessary majority was not obtained, the case was
redeliberated upon. However, after redeliberation, the
voting remained the same. Accordingly, pursuant to Rule
56, Section 7 of the Rules of Civil Procedure, the petition is
DISMISSED.
While the Court's decision itself did not provide the
reasoning behind the votes, Justice Puno provided a lengthy
support for the decision of the Court that traced the roots of
the Constitutional provisions and IPRA:
PUNO, I.:
When Congress enacted the Indigenous Peoples Rights Act
(IPRA), it introduced radical concepts into the Philippine
legal system which appear to collide with settled
constitutional and jural precepts on state ownership of
land and other natural resources. The sense and subtleties
of this law cannot be appreciated without considering its
distinct sociology and the labyrinths of its history. This
Opinion attempts to interpret IPRA by discovering its soul
shrouded by the mist of our history. After all, the IPRA
was enacted by Congress not only to fulfill the consti-
tutional mandate of protecting the indigenous cultural
communities' right to their ancestral land but more
importantly, to correct a grave historical injustice to our
indigenous people.
NATIONAL LAws AND POUClES 1 43
The Philippines passed to Spain by virtue of "discovery"

and conquest. Consequently, all lands became the
exclusive patrimony and dominion of the Spanish Crown.
The Spanish Government took charge of distributing the
lands by issuing royal grants and concessions to Spaniards,
both military and civilian. Private land titles could only be
acquired from the government either by purchase or by the
various modes of land grant from the Crown.
xxx
The Regalian doctrine was enshrined in the 1935

Constitution. Xxx The 1973 Constitution reiterated the
Regalian doctrine in Section 8, Article XIV xxx The 1987
Constitution reaffirmed the Regalian doctrine in Section 2
of Article XII on "National Economy and Patrimony," xxx
Simply stated, all lands of the public domain as well as all
natural resources enumerated therein, whether on public
or private land, belong to the State. It is this concept of
State ownership that petitioners claim is being violated by
the IPRA.
Republic Act No. 8371 xxx The IPRA recognizes the
existence of the indigenous cultural communities or
indigenous peoples (ICCs/IPs) as a distinct sector in
Philippine society. It grants these people the ownership
and possession of their ancestral domains and ancestral
lands, and defines the extent of these lands and domains.
The ownership given is the indigenous concept of
ownership under customary law which traces its origin to
native title.
xxx
Land is the central element of the indigenous peoples'

existence. There is no traditional concept of permanent,
individual, land ownership. Among the Igorots, ownership
of land more accurately applies to the tribal right to use the
land or to territorial control. The people are the secondary
owners or stewards of the land and that if a member of the

tribe ceases to work, he loses his claim of ownership, and
the land reverts to the beings of the spirit world who are its
true and primary owners. Under the concept of
"trusteeship," the right to possess the land does not only
belong to the present generation but the future ones as
well.
Customary law on land rests on the traditional belief that

no one owns the land except the gods and spirits, and that
those who work the land are its mere stewards. xxx
Land titles do not exist in the indigenous peoples'

economic and social system. The concept of individual
land ownership under the civil law is alien to them.
Inherently colonial in origin, our national land laws and
governmental policies frown upon indigenous claims to
ancestral lands. Communal ownership is looked upon as
inferior, if not inexistent.
The Legislative History of the IPRA
It was to address the centuries-old neglect of the Philippine

indigenous peoples that the Tenth Congress of the
Philippines, by their joint efforts, passed and approved
R.A. No. 8371, the Indigenous Peoples Rights Act (IPRA) of
1997. xxx
Senator Flavier further declared:
"The IPs are the offsprings and heirs of the peoples

who have first inhabited and cared for the land long
before any central government was established. Their
ancestors had territories over which they ruled
themselves and related with other tribes. These
territories-the land-include people, their dwelling,
the mountains, the water, the air, plants, forest and the
animals. This is their environment in its totality. Their
existence as indigenous peoples is manifested in their
own lives through political, economic, socio-cultural
and spiritual practices. The IPs culture is the living
and irrefutable proof to this.
Their survival depends on securing or acquiring land

rights; asserting their rights to it; and depending on it.
Otherwise, IPs shall cease to exist as distinct peoples."
To recognize the rights of the indigenous peoples

effectively, Senator Flavier proposed a bill based on two
postulates: (1) the concept of native title; and (2) the
principle of parens patriae.
According to Senator Flavier, "[w]hile our legal tradition

subscribes to the Regalian Doctrine reinstated in Section
2, Article XII of the 1987 Constitution," our "decisional
laws" and jurisprudence passed by the State have "made
exception to the doctrine." This exception was first laid
down in the case of Carifto v. Insular Government xxx
Ancestral Domains and Ancestral Lands are the

Private Property of Indigenous Peoples and Do
Not Constitute Part of the Land of the Public
Domain.
The IPRA grants to ICCs/IPs a distinct kind of

ownership over ancestral domains and ancestral
lands. xxx Native title refers to ICCs/IPs'
preconquest rights to lands and domains held
under a claim of private ownership as far back as
memory reaches. These lands are deemed never to
have been public lands and are indisputably
presumed to have been held that way since before
the Spanish Conquest. The rights of ICCs/IPs to
their ancestral domains (which also include
ancestral lands) by virtue of native title shall be
recognized and respected. xxx
Like a torrens title, a CADT is evidence of private

ownership of land by native title. Native title,
however, is a right of private ownership peculiarly
granted to ICCs/IPs over their ancestral lands and
domains. The IPRA categorically declares ancestral
lands and domains held by native title as never to

have been public land. Domains and lands held
under native title are, therefore, indisputably
presumed to have never been public lands and are
private.
xxx
The Indigenous Concept of Ownership and Customary Law.
Ownership of ancestral domains by native title does not

entitle the ICC/IP to a torrens title but to a Certificate of
Ancestral Domain Title (CADT). The CADT formally
recognizes the indigenous concept of ownership of the
ICCs/IPs over their ancestral domain. xxx
Following the constitutional mandate that "customary law

govern property rights or relations in determining the
ownership and extent of ancestral domains," the IPRA, by
legislative fiat, introduces a new concept of ownership.
This is a concept that has long existed under customary
law.
Custom, from which customary law is derived, is also

recognized under the Civil Code as a source of law. Some
articles of the Civil Code expressly provide that custom
should be applied in cases where no codal provision is
applicable. In other words, in the absence of any applicable
provision in the Civil Code, custom, when duly proven,
can define rights and liabilities.
Customary law is a primary, not secondary, source of

rights under the IPRA and uniquely applies to ICCs/IPs. Its
recognition does not depend on the absence of a specific
provision in the civil law. The indigenous concept of
ownership under customary law is specifically
acknowledged and recognized, and coexists with the civil
law concept and the laws on land titling and land
registration.
To be sure, the indigenous concept of ownership exists

even without a paper title. The CADT is merely a "formal
recognition" of native title.
xxx
Are ancestral domains therefore, considered private lands in

the same way as ordinary titled private lands? Jurisprudence
and IPRA are very clear that these lands are private;
however, the reality in the ground is different and more
complex -for example, DENR still considers that ancestral
domains within protected areas are still part of public
domain. Succeeding chapters explore the various dimen-
sions of this -issue.
1.3.2 National Legislation
It is often said that the Philippines has comprehensive and

highly advanced laws to protect the environment and
conserve natural resources, but that these laws are poorly
enforced because of financial and technical capacity
limitations.
Natural resource exploitation was heavily encouraged since

the American and Philippine Commonwealth periods. For a
long time the government implemented a policy that
emphasized economic development, with little regard for
conservation. In fact, from the 1940s to the 1970s the
Philippines was one of the world's leading exporters of logs
and fisheries. This bias toward extraction and utilization
significantly contributed to the loss and degradation of forest
and marine resources. The attention given to balancing
utilization and conservation of natural resources, as seen in
current policy pronouncements, is a relatively recent
development.
The policy shift from exploitation to management occurred

in the late 1980s, when government issued policies to protect
the remaining forest resources while giving local forest-
dependent communities the right to sustainably use these
resources. Community-based Forest Management (CBFM)
has since evolved as a foundation of environmental policy
and a strategy for sustainable forest management under
Executive Order No. 263 was promulgated in 1995, which
pronounced. The CBFM strategy addressed the concern on
sustainable forest management, and also allowed more
equitable access to forest resources. Other instruments that
served these ends include the National Integrated Protected
Areas System Act and the Indigenous Peoples Rights Act,
which respectively gave local communities and those of
indigenous peoples the opportunity to participate formally
in forest management (de Rueda 2007).
In the fisheries sector, local communities and their civil
society partners pioneered community-based coastal
management approaches to protected the dwindling marine
resources. The enactment of the Fisheries Code in 1998 gave
impetus to fisheries resources conservation and community-
based management. Pollution laws have a relatively shorter
history. Before the 1970s, little importance was placed on
waste and pollution concerns. As population grew and
urbanization gained momentum, pollution problems and its
attendant woes (such as environmental health concerns)
became a serious concern. In response, the government came
up a succession of laws that have been hailed as landmark
legislation, including the Toxic and Hazardous Waste
Management Act (1990), Clean Air Act (1999), the Ecological
Solid Waste Management Act (2000), and the Clean Water
Act (2004). These have been lauded for laying down a
comprehensive framework for environmental management
in the place of the piecemeal legislation that previously
governed these matters.
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1.3.3 International Agreements 24
The Philippines automatically adopts the generally accepted

25
principles of international law as part of the law of the land.
However, specific treaties and international agreements
require a two-thirds Senate concurrence 26 to ratification
before they can take effect. Treaties and international agree-
ments must not contravene the Constitution.
The Philippines is a founding member of the Association of

Southeast Asian Nations (ASEAN), which is devoted to
"accelerate the economic growth, social progress and cultural
development in the region through joint endeavours in the
spirit of equality and partnership..." including "active
collaboration and mutual assistance on matters of common
interest in the economic, social, cultural, technical, scientific
and administrative fields....,27
In the past two decades, environmental laws and policies

have been largely shaped by the country's participation and
commitment to implement international environmental
agreements, including the United Nations Convention on
Biological Diversity (UNCBD), UNFCCC, Convention on
Wetlands or Ramsar Convention, Convention on Migratory
Species (CMS), CITES, International Convention for the
Prevention of Marine Pollution from Ships (MARPOL), Basel
Convention and others, as well as regional cooperation on
the CTI, SDS-SEA and the ASEAN Center for Biodiversity. In
addition, the country is a member of the 18 Like-Minded
Megadiverse Countries formed in Cancun in 2002.
24 This section serves as an overview of various international agreements.

Further discussion may be found in Volume 2 of this series.
25 Const. (1987), art. II, §2 (Phil.).
26 Const. (1987), art. VII, §21 (Phil.).
27
ASEAN Declaration (1967), http://www.asean.org/1212.htm.
The Philippines is a party to Regional Fisheries Management

Organizations, including the Commission for the Conser-
vation of Southern Bluefin Tuna (CCSBT), International
Commission on the Conservation of Atlantic Tunas (ICCAT),
Indian Ocean Tuna Commission (IOTC), Western and
Central Pacific Fisheries Commission (WCPFC).
Table 3: International Agreements on Environment and

Natural Resources
International Domestic Designated
Agreement/Date of Implementing National
entry into force/Date Legislation Authority/Lead
of Philippine implementing
ratification agencies
COASTAL and MARINE
UNCLOS 82 * RA 9522 Department of
Archipelagic Foreign Affairs
baselines
* RA 8550
Philippine
Fisheries Code
MARPOL 73/78 Clean Water Act DENR
Annex I/11
MARPOL 73/78
Annex III
MARPOL 73/78
Annex IV
MARPOL 73/78 Clean Air Act DENR
Annex V
1993 FAO
Compliance
Agreement
1995 UN Fish Stocks
Agreement
London Convention
Protocol 96
CLC Protocol 92 RA No. 9483 MARINA-DOTC
Compensation for I

oil pollution
damage
FUND Protocol 92 RA No. 9483 MARINA-DOTC
Compensation for
oil pollution
damage
SUA Convention 88
SOLAS Convention MARINA Circular
74 No. 2008-03
Rules and
Regulations to
Implement the
Code of Safe
Practice for Cargo
Stowage and
Securing in
Domestic
Shipping
OZONE, CLIMATE and DISASTER RISK
UNFCCC 92 R.A. 9729 Climate Change
Climate Change Commission:
Act (2009) Philippine
President as
Chairperson; 3
Commissioners
appointed by the
President
Kyoto Protocol 97 * RA 8749 Clean Environmental
Air Act Management
* RA 9003 Bureau of the
Ecological Solid Department of
Waste Environment and
Management Natural Resources.
Act Supported by an
NATIONAL LAws AND POLICIES 1 73

Interagency
Committee
composed of DFA,
DOE, DOST, DA,
DPWH, DOTC,
DTI-BOI, FMB of
DENR, NEDA,
PAGASA, Phil.
Network on
Climate Change
DENR was also
designated
National Authority
on CDM (EO 320,
s. 2004)
Bali Action Plan
Durban Platform
Vienna Convention Environmental
(Ozone Layer) Management
Bureau of the
Department of
Environment and
Natural Resources
Montreal Protocol 87 Environmental
Management
Bureau of the
Department of
Environment and
Natural Resources
Hyogo Framework * RA 10121 National Disaster
for Action Disaster Risk Reduction
Reduction Act and Management
(2010) Coordinating
Council (formerly

NDCC) chaired by
the Secretary of
National Defense
with heads of 18
Departments as
members
WILDLIFE and BIODIVERSITY
Biodiversity 92 * RA 7586 Protected Areas
National and Wildlife
Integrated Bureau of the
Protected Areas Department of
System (NIPAS) Environment and
Law 1992 Natural Resources.
* RA 9147 Supported by a
Wildlife Act Review Committee
(REV COM)
composed of DA,
DOST, DILG,
DOH, NCIP,
National Museum,
civil society,
academe.
Ramsar 71* * Wetland Protected Areas
Conservation and Wildlife
Program 1996 Bureau of the
* National Department of
Wetland Action Environment and
Plan Natural Resources
CITES 73 * R.A. 9147 An Protected Areas
Act Providing and Wildlife
for the Bureau of the
Conservation Department of
and Protection Environment and
of Wildlife Natural Resources.
Resources and Supported by
their Habitats DENR, DAR,
2001 BFAR, Palawan
Council for
Sustainable
Development.
Wildlife Traffic
Monitoring Units
in every region.
Migratory Species 79 Protected Areas
and Wildlife
Bureau of the
Department of
Environment and
Natural Resources
WASTE and HAZARDOUS SUBSTANCES
Basel Convention 89 * RA 6969 Toxic Environmental
Substances and Management
Hazardous and Bureau of the
Nuclear Wastes Department of
Control Act of Environment and
1990 Natural Resources.
Supported by an
Interagency
Technical
Advisory Council:
DOH, PNRI, DTI,
DND, DFA, DOLE,
DOF, DA, NGOs
Basel Protocol 99 Environmental
Management
Bureau of the
Department of
Environment and

Natural Resources
Rotterdam PD 1144, Fertilizer Fertilizer and
Convention and Pesticide Pesticide
Authority Authority of the
Department of
Agriculture and
Environmental
Management
Bureau of the
Department of
Environment and
Natural Resources
Stockholm * RA 6969 Toxic Fertilizer and
Convention on POPs Substances and Pesticide
2001 Hazardous and Authority of the
Nuclear Wastes Department of
Control Act of Agriculture and
1990 Environmental
* RA 8749 Clean Management
Air Act Bureau of the
* RA 9003 Department of
Ecological Solid Environment and
Waste Manage- Natural Resources
ment Act
Biosafety Protocol * EO 430 (1990) DOST, DENR; DA
2000 creating the and DOH
National
Committee on
Biosafety
* RA No. 9271
Quarantine Act
* National
Biosafety
Framework
NATnoNAL LAws AND POUClES 1 77

entry nto force/Date Legislation Authority/Lead
(2006)
FOOD and AGRICULTURE
Treaty on Plant Department of
Genetic Resources for Agriculture
Food and Agriculture
2006
Fisheries Convention BFAR of the
Conservation and Department of
Management of Agriculture
Highly Migratory
Fish Stocks 04**
CULTURE and HERITAGE
World Heritage 72 e National National
Cultural Commission for
Heritage Act of Culture and the
2009 Arts
ACCESS PRINCIPLES
Rio Declaration 92
Aarhus Convention
1.4 Further Discussion
1. How is economic growth relevant to the management
of environment and natural resources? Consider, for
example, that the mining and tourism sectors are seen
as major engines for economic growth. Consider also
that economic activities are dependent on natural
resources for water, power, nutrients, waste and
pollution control, etc. Because of the narrow base of
the economy, is there pressure to extract the most
value from the few sectors now in order to accelerate
economic growth?
2. The solution to environmental problems is often

linked to poverty alleviation. Why? How might
poverty affect natural resource use patterns of poor
communities for livelihood, health and sanitation,
housing, safety and security, etc? Consider both
urban and rural situations. Can poverty alleviation
programs also have negative environmental
consequences? For example, what is the impact of
increasing agricultural productivity in the upland
areas, or of fishing capacity in coastal areas?
THE RIGHT TO A BALANCED AND

HEALTHFUL ECOLOGY: THE ODYSSEY OF
A CONSTITUTIONAL POLICY*
Antonio G.M. La Vina*"
Earth give me back your pure gifts, the towers of silence which
rose from the solemnity of their roots. I want to go back to being
what I have not been, and learn to go back from such deeps that
amongst all natural things I could live or not live; it does not
matter to be one stone more, the dark stone, the pure stone which
the river bears away.
Pablo Neruda
Delivered as Malcolm Lecture on Constitutional Law, March 8,

1994, University of the Philippines.
Assistant Professor, College of Law, University of the Philippines;
Director, Research and Policy Development Division, Legal Rights
and Natural Resources Center/Kasama sa Kalikasan; JSD Cand.,
LLM '92, Yale Law School; LLB '89, University of the Philippines;
AB Philosophy '80, Ateneo de Manila University. Research
assistance by Atty. Dante Rene B. Gatmaytan, Ms. Patricia Marie
de Guzman and Ms. France Begonia is acknowledged.
1. Central Thesis
The central thesis that underpins this lecture is that

the constitutional policy on the environment is made
and remade, interpreted and reinterpreted, or in
other words, operationalized not by the Philippine
judiciary principally nor even by the Philippine
government but by the interaction of a plurality of
participants in a social decision process- These
participants include government institutions -such
as the Judiciary, Congress and the Executive Branch,
industry and other commercial users of natural and
ecological resources, communities of direct users of
said resources, nongovernmental organizations, and
international entities such as multilateral financing
institutions.
What is the law, including the constitutional policy,

in the area of the environment at least, cannot be
really fixed at any given time but is a continuing
process of decision-making in forums as diverse as
courts, administrative processes, the legislature, and
international negotiations. Indeed, the decision
process extends even to informal and unofficial
forums.
All the participants bring their own perspectives,

framed as interpretations of law and policy, into this
process and the determining factor on what
perspective prevails at a given point in time is the
balance of authority and power-i.e. the balance
between the text of the law as a source of authority
and the economic, political and cultural resources
available to the participants in the decision process.
In a nutshell, the constitutional policy on the
environment is not only what the Constitution says it
is nor even what the Supreme Court proposes it to be

but is the interpretation which prevails in a process
characterized by conflict among a plurality of
participants.
2. Methodology
To prove this thesis, I propose to use the policy
science approach as developed by Professors Myres
McDougal and Harold Lasswell and as articulated by
Professor W. Michael Reisman, I use this metho-
dology without any illusion that it is the only
theoretical framework that should be used to
understand law. In fact, I concede that, at some
points, the framework can be criticized as culturally
inappropriate. However, I find the approach a very
useful tool in piercing through and going beyond law
as a matter mainly of rules and of logic, a task which I
think is essential in all areas of law and particularly in
environmental law.
Professor Reisman describes law as a social decision
process. 2 By itself, there is nothing new in this
proposition. At a superficial level, we can all agree
that "a lawful decision is a choice made in conformity
with appropriate procedural and substantive
norms".3 But Reisman points out that one does not
just make a decision. Indeed, many functions or
operations are concealed in the word "decision" and
I See Myres McDougal and Harold Lasswell, "The Identification of

Diverse Systems of Public Order" 53 A.J.LL. 1 (1959); See also
Myres McDougal & Associates, STUDIES IN WORLD PUBLIC
ORDER (1960).
2 W. Michael Reisman, "Law from the Policy Perspective," in Myres
McDougal &W. Michael Reisman, International Law Essays (1981)
1,3.
3 Id.
NAllONAL LAWS AND POUCIES I 81
anyone who wants to understand as well as make
effective a legal norm must deconstruct, i.e. take
apart, the meaning of such a term. Concretely, this
means that the lawyer or legal scholar must distin-
guish law as myth system from law as operational
code.4
By myth system, Reisman refers to the black-letter
law, to the official legal norms recognized as such by
society and by organs of the state. Thus, the
constitution, statutes, administrative rules, even
jurisprudence-all these form part of law as myth.
But, according to Reisman:
there are enough discrepancies between this myth
system and the way things are actually done by
key officials or effective' actors to force the
observer to apply another name for the unofficial
but nonetheless effective guidelines for behavior in
those discrepant sectors: the operational code. The
operational code-how the legal norms are used
and manipulated and enforced by the different
actors in a legal system-is a "byproduct of social-
complexity. generated by the increase of social
divisions and specializations". In the context of
power, the operational code is a 'privatesystem of
law",. 5
The operational code is not totally divorced from the

myth system. Indeed, it finds legitimacy in being
able to invoke black-letter law. But it is distinct from
the myth system. And to understand law as well as to
make it more effective is to go beyond constitutional
and statutory policy as myth and into policy as
operational code.
4 Id 3-4.
s I126.
Understanding the operational code of Philippine

environmental policy is particularly important
because staying at the level of constitutional, statu-
tory and jurisprudential text alone is deceptive. At
this level, we have some of the most progressive
policies in the world. Particularly among developing
countries, we are certainly one of the most if not the
most advanced in articulated policy. The categorical
right to ecological security in the 1987 Constitution 6
and our laws on protected areas7 as well as toxic and
hazardous wastes,8 and the precedent-setting case of
Oposa v. Factoran 9 are just some examples. Yet, on
the ground, we cannot deny that our environmental
problems remain daunting. We cannot in any way
say that we have turned the tide. Hence, it is
imperative to pierce our legal text and ask why there
is a gap between policy and reality, i.e. why the
operational code is different from the myth system.
For this lecture, because of time constraints, I decided

to present in detail only my analysis of the role of the
Judiciary in environmental policymaking. This analy-
sis I present in two parts: First, the role of the
judiciary as articulated in the myth system; Second,
this role as manifested in the operational code. In the
first part which I call-Oposa v. Factoran:Locating the
Role of the Judiciary in the Myth System, I will use
predominantly legal texts-the Constitution, statu-
6 Const., Art. II. Sec. 16. (Phil.)

7 See Republic Act No. 7586-"An Act Providing for the
Establishment and Management of National Integrated Protected
Areas System, Defining its Scope and Coverage and for Other
Purposes."
8 See Republic Act No. 6969: An Act to Control Toxic Substances
And Hazardous And Nuclear Wastes. Providing Penalties For
Violation Thereof, And For Other Purposes.
9 Minors Oposa et. al. v. Factoran. G.R No. 101083, 30 July 1993.
tory provisions, and Philippine and U.S. jurispru-

dence. In the second part entitled- The Judiciary and
The Environmental Dilemma: The Operational Code, I
will make use of various social sciences, particularly
economics and anthropology. In this section, I will
also be indicating tentative observations and conclu-
sions I have made as regards alternative forums for
environmental decision-making as well as the roles of
other participants. This is necessary for a clearer
overview of the operational code of environmental
law and policy and also for appreciating the role and
limits of the judiciary.
3. OPOSA V. FACTO RAN:
LOCATING THE ROLE OF THE JUDICIARY IN
THE MYTH SYSTEM
The Oposa vs. Factoran case, promulgated on July 30,
1993, is a final and binding judgement of the Supreme
Court. It is not, strictly speaking, the first environ-
mental case in the Philippines. Indeed, we have a
long line of decisions involving disputes in natural
resources utilization-ego cases concerning owner-
ship of timber resources 10 and disputes over timber
license agreements." We have had a number of cases
also concerning pollution l as well as a case involving
nuclear power.' 3 Winding its way to the Supreme
Court are cases involving conversion of lands from
10See Santiago v. Basilan, 9 SCRA 349 and People v. CFI of Quezon,

BR. VII, 206 SCRA 187.
11See Suarez v. Reyes, 7 SCRA 462, Agusmin Promotional
Enterprises v. Court of Appeals 117 SCRA 369, Tan v. Director of
Forestry 125 SCRA 302.
12 See Pollution Adjudication Board v. Court of Appeals 195 SCRA
112 and Mead v. Argel 115 SCRA 256.
13Tanada v. PAEC 141 SCRA 307 (1986).
agricultural to industrial or residential.1 4 All these

cases however, while certainly having environmental
implications, dealt with the issue from a conflict-of-
rights perspective, thus usually the ratio decidendis
of these decisions were based on due process,
property rights, the Regalian Doctrine or the law on
agrarian reform.
What distinguishes Oposa V. Factoranhowever is that
it is our first case which expressly interprets the
constitutional right to a balanced and healthful
ecology found in the 1987 Constitution. Oposa v.
Factoranis also the first and so far the only Philippine
case which deals with the issue of how to value our
natural resources not only with respect to the present
but also for the future generations. Hence, the Oposa
case is a landmark decision for this reason. As Justice
Florentino Feliciano describes it in his concurring
opinion, it
is one of the most important cases decided by this
Court in the last few years. The seminal principles
laid down in this decision are likely to influence
profoundly the direction and course of the
protection and management of the environment,
which of course embraces the utilization of all the
natural resources in the territorial base of our
15
polity.
The Issues
At this point, I must also acknowledge my gratitude

to Atty. Antonio Oposa and former DENR Secretary
14
These cases are still at the administrativel level or in the lower
courts.
IS Concurring Opinion of Justice Florentino Feliciano in Oposa v.
Factoran.
NATIONAL LAWS AND POUClES 1 85
Fulgencio Factoran for consenting to be reactors to

this lecture. Having been the main protagonists in the
case, I am sure we will benefit from their insight as
well as hindsight.
The plaintiffs in this case were minors represented by
their parents, and the Philippine Ecological Network,
Inc., a non-stock, non-profit organization. The
original defendant was Atty. Factoran, then Secretary
of the Department of Environment and Natural
Resources (DENR). The complaint was filed by the
plaintiffs to compel the defendant to cancel all
existing Timber License Agreements (TLA) and to
cease and desist from granting new applications. This
complaint was dismissed by the Regional Trial Court
on the procedural ground that the complaint stated
no cause of action against the defendant and that the
granting of the relief asked would result in the
impairment of contracts which is prohibited by the
Constitution.
The plaintiffs in turn petitioned the Supreme Court to
reverse this ruling on the ground that the trial court
gravely abused its discretion in dismissing the
complaint. The Supreme Court ruled in favor of the
petitioners and remanded the case to the lower court
for trial.
In its simplest formulation, the main issues in this
case are whether or not the petitioners have a cause of
action and whether or not cancellation of the TLAs
constitutes impairment of contracts. It is the first issue
which concerns us in this lecture as it is in resolving
the issue of cause of action that the Court interprets
the constitutional right to a sound environment.
In addition to these issues, the Supreme Court also

ruled on the question of whether the petitioners had
standing to file this case and on whether or not the
matter at hand was a political question. While
arguably obiter, the Court's pronouncements on
these points merit discussion.
The Decision
The argument of the respondents centered on the
proposition that the petitioners failed to allege in
their complaint a specific legal right violated by the
former for which any relief is provided by law. They
also argued that the question of whether logging
should be permitted in the country is a political
question which should be properly addressed to the
executive or legislative branches.
In the decision rendered by the Supreme Court,
written by Justice Hilarion Davide and concurred in
by all the Justices except Justice Narvasa who did not
take part as he was related to one of the petitioners
and Justice Vitug who was not yet a member when
the case was deliberated upon, the Court made the
following significant statements:
First, the Supreme Court dealt with the issue of
standing. Did the petitioners have standing to file this
complaint? The Court said yes, stating that the civil
case was properly a class suit. According to the
Court:
The subject matter of the complaint is of common
and general interest not just to several, but to all
citizens of the Philippines. Consequently since the
parties are so numerous, it becomes impracticable,
if not totally impossible, to bring all of them before

16
the court.
The Supreme Court also recognized that the children

in this case correctly asserted that they represent their
generation as well as generations yet unborn. Recog-
nizing intergenerational equity and responsibility
was a "special and novel element" in the case.
According to the Court,
their personality to sue in behalf of the succeeding

general ions can only be based on the concept of
intergenerational responsibility insofar as the right
to a balanced and healthful ecology is concerned. 17
Second, the Supreme Court agreed with the

petitioners that they had a cause of action. According
to the Court,
[T]he complaint focuses on one specific

fundamental right, the right to a balanced and
healthful ecology which, for the first time in our
nations constitutional history, is solemnly
incorporated in the fundamental law.18
The Court then cited Section 16, Article II of the

Constitution which provides that
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.
It also pointed to Section 15, Article II which

mandates the State "to protect and promote the right
to health of the people and instill health
consciousness among them."
16 Oposa v. Factora.
17 Id., at 12.
18 Id., at 14.
Finally, to support its proposition that there is a right

to a sound environment, the Court cited Exec. Order
No. 192 (987), the Administrative Code, and the
Philippine Environmental Policy, all of which express-
es a general policy of environmental protection.
In interpreting these provisions, the Supreme Court
recognized the primacy and centrality of the right to
ecological security and health among the many rights
assured by the Constitution. It said that:
[While the right to a balanced and healthful
ecology is to be found under the declaration of
Principles and State Policies and not under the Bill
of Rights, it does not follow that it is less important
than any of the civil and political rights
enumerated in the latter. Such a right belongs to a
different category of rights altogether for it
concerns nothing less than self preservation and
self-perpetuation -the advancement of which may
even be said to predate all governments and
constitutions. As a matter of fact, these basic rights
need not even be written in the Constitution for
they are assumed to exist from the inception of
mankind. If they are now explicitly mentioned in
the fundamental charter, it is because of the well-
founded fear of its framers that unless the rights to
a balanced and healthful ecology and to health are
mandated as state policies by the Constitution
itself, thereby highlighting their continuing
importance and imposing upon the state a solemn
obligation to preserve the first and protect and
advance the second, the day would not be too far
when all else would be lost not only for the present
generation, but also for those to come -
generations which stand to inherit nothing but
parched earth incapable of sustaining life. 19
19 Id., at 14.
NA iONAL LAws AND POLICIES I 89
Going beyond the rhetoric and poetry of these
statements, the import of the Court's statements is
that the right to a sound environment is a self-
executory constitutional policy. By itself, independent
of specific statutory rights, this right is actionable.
And it is actionable against the DENR Secretary who
is tasked with carrying out the State's constitutional
mandate to control and supervise the exploration,
development, utilization, and conservation of the
country's natural resources.
On the matter being a political question, the Court
pointed out that under Article VIII, Section 1 of the
1987 Constitution, judicial power has been expanded
to include:
the duty of the courts of justice to settle actual
controversies involving rights which are legally
demandable and enforceable. and to determine
whether or not there has been a grave abuse of
discretion amounting to lack or excess of
jurisdiction on the part of any branch or
instrumentality of the Government.
Finally, on the issue of non-impairment of contracts,
the Court ruled that TLAs are no't contracts within
the scope of the constitutional prohibition, but only a
license which can be withdrawn when warranted by
public interest or welfare. Even if It also observed
that even if they were considered as contracts, the
non-impairment clause cannot be invoked because
there is no law involved. Besides, such a law,
according to the Supreme Court, would be justified
under the police power of the state.
THE LEGAL IMPLICATIONS
Coupled with the liberalization of the rule on

standing, recognizing the constitutional right to a
sound environment as self-executory makes Oposa v.
Factoran a truly radical case insofar at least as to its
legal implications.
Justice Feliciano, in a concurring opinion, clearly sees

these implications. With all due respect to Justice
Feliciano, I think that his concurring opinion does not
clarify what the Court appears to be saying but in fact
diverges substantially from the reasoning in the main
decision. Indeed, a dispassionate observer could
sincerely conclude that Justice Feliciano's concur-
rence is in part a dissent.
For example, on the issue of whether the petitioners

had a cause of action, Justice Feliciano disagreed.
According to him, they had not identified one specific
fundamental legal right on which to base their claim.
Although the right to a balanced and healthful
ecology is indeed a constitutional right, nothing could
be more "comprehensive in scope and generalized in
character." He disagreed that Sections 15 and 16 of
Article II of the Constitution were self-executing and
judicially enforceable in their present form. The same
is true for the other texts cited by the Court in its
main decision.
As to legal standing, Justice Feliciano observed that

locus standi "is not a function of petitioners' claim that
their suit is properly regarded as a class suit" but
refers to "the legal interest in which a plaintiff must
have in the subject matter of the suit". He then
pointed the broadness of the class involved in this
suit -
[B]ecause of the very broadness of the concept of

"class" here involved -membership in this "class"
appears to embrace everyone living in the country
whether now or in the future-it appears to me
that everyone who may be expected to benefit
from the course of action petitioners seek ... is
vested with the necessary locus standi.
The Court can be seen therefore to be recognizing a

beneficiaries' right of action in the field of
environmental protection as against both the
public administrative agency directly concerned
and the private persons or entities operating in the
20
field or sector of activity involved.
Justice Feliciano then concludes that whether such

right of action "may be found under any and all
circumstances, or whether some failure to act, in the
first instance on the part of the government agency
concerned must be shown" is not discussed in the
decision and presumably left for future determination
21
in a proper proceeding.
On the issue of whether the cancellation of TLAs is a

political question, Justice Feliciano clearly agrees,
stating that
[W)hen substantive standards as general as "the

right to a balanced and healthy ecology" and "the
right to health" are combined with remedial
standards as broad ranging as "a grave abuse of
discretion amounting to lack or excess of
jurisdiction," the result will be ..,to propel courts
into the uncharted ocean of social and economic
policy making. At least in respectof the vast area of
environmental protection and management, our
2
0 Concurring Opinion of Justice Feliciano.
21 Id.
courts have no claim to special technical

competence and experience and professional
qualification. Where no specific, operable norms
and standards are shown to exist, then the policy
making departments-the legislative and exe-
cutive departments -must be given a real and
effective opportunity to fashion and promulgate
those norms and standards, and to implement
them before the courts should intervene. 22
Why then did Justice Feliciano concur with the

decision? From my reading, I can point out two
reasons. First, he believes that such a specific right on
which petitioners may base their cause of action may
exist in Philippine law, and that plaintiffs should be
afforded an opportunity to demonstrate this right,
and that this opportunity was denied by granting the
defendant's Motion to Dismiss. Second, Justice
Feliciano voted to grant the petition because, in his
words, "the protection of the environment, including
the forest cover of our territory, is of extreme
importance for the country."
In sum, what are the legal implications of Oposa v.
Factoran?
First, the Supreme Court dearly recognizes the
constitutional right to a sound and healthful ecology
as a self-executory and actionable right, independent
of specific legal rights. Theoretically, although
probably imprudent on the part of a plaintiff or
complainant, Article II Section 16 alone can be
invoked to question acts or omissions by the other
branches of government. It is as self-implementing as
the right to free speech or freedom of religion and
other rights found in the Bill of Rights.
22 Id., at 6-7.
It would however be imprudent on the part of

environmentalists or communities to rely on this
right alone as a basis for legal action. Difficulties in
determining what evidence to present would arise if
such reliance was made. An environmental case
would have a much greater chance of success at the
trial level if evidence, for example, of specific
violations by a TLA holder of its concession
agreement or of forestry laws be introduced. I
venture to say that this is the specific legal right that
Justice Feliciano indicated may exist on which the
Oposa petitioners can anchor their claim for relief.
Second, the case liberalizes standing-at least with
respect to environmental disputes. The concept of
class suit recognized in this case departs from our
normal understanding of the term. The explicit
recognition of the right of future generations to be
represented by present generations was certainly
never taught to me in my remedial law classes.
Oposa v. Factoran is precedent-setting in that it
broadens the meaning of who are "proper parties" in
a suit.2 3 As all lawyers know, all actions must be
prosecuted and defended in the name of the real
party in interest.24 The real party in interest has
always been restricted to:
the party who stands to be benefitted or injured
...
by the judgment or the party entitled to the avails
of the suit. "Interest" within the meaning of the
rule means material interest, an interest in issue
and to be affected by the decree, as distinguished
23
See Dante Rene B. Gatmaytan, Unpublished Commentary on the
Oposa v. Factoran Case, LRC/KSK Files.
24 RULES OF COURT, rule 3, sec. 2.
from mere interest in the question involved, or a

25
mere incidental interest. xxx
The significance of Oposa is emphasized considering

the restrictive ruling of the Supreme Court in Lozada
v. Commission on Elections. 26 There, the Court
denied a petition to review a decision of the
COMELEC which refused to call an election to fill
vacancies in the Batasang Pambansa. According to
the Court,
...Petitioners' standing to sue may not be

predicated upon an interest of the kind alleged
here. which is held in common by all members of
the public because of the necessarily abstract
nature of the injury supposedly shared by all
citizens. Concrete injury, whether actual or
threatened, is that indispensable element of a
dispute which serves in part to cast it in a form
traditionally capable of judicial resolution. When
the asserted harm is a "generalized grievance"
shared in substantially equal measure by all or a
large class of citizens, that harm alone normally
does not warrant exercise of jurisdiction ...Even his
plea as a voter is predicated on an interest held in
common by all members of the public and does not
demonstrate any injury specially directed to him in
27
particular.
Finally, the Oposa v. Factoran case is precedent for the

proposition that the formulation and implementation
of specific environmental policies are not exclusively
within the ambit of the political branches of our
25 Gan Hock v. Court of Appeals 197 SCRA 223, 230 (1991), See also
Sustiguer v. Tamayo. G.R. No. 29341, 176 SCRA 579, 587 (1989).
cited in Gatmaytan. Supra note 24.
26 Q.R. No. 59068,120 SCRA 337,340 (1983), cited in Gatmaytan.
27 Id., at 341-342.
governmental system. Since a self-executory consti-

tutional right is involved, our courts may intervene
when there is grave of abuse of discretion in denying
relief based on the assertion of such a right.
In the United States, legal standing in environment

cases has long been settled. However, unlike Oposa,
standing in the U.S. is always predicated on the
complainant's allegation that the action will cause her
injury whether economic, conservational, recreation-
al, or aesthetic. 28 Oposa goes beyond U.S. environ-
mental jurisprudence which requires that specific,
material injury must still be alleged before an action
can be filed.
In sum, our constitutional policy on the environment

as interpreted by the Supreme Court in Oposa v.
Factoran is as progressive and as strong as it can be.
What more can we ask for?
It is at this point that we must look at constitutional

policy as operational code. Because to stay on the
level of the myth system is to delude ourselves.
For example, without minimizing the significance of

the victory of the plaintiffs in the Oposa case, we
must remember that the decision did not result in the
cancellation of any timber license agreement and that
it took the judiciary three full years (one year by the
lower court and two years by the Supreme Court) to
dispose of what was basically a procedural issue. In
28 U.S. v. Students Challenging Regulatory Agency Procedures, 412

U.S. 669 and Sierra Club v. Morton, 405 U.S. 727 cited in 61A Am
Jur 2d., Pollution Control, §35. Injury to aesthetic and
environmental interest has been recognized as laying a sufficient
foundation for standing. Save the Courthouse Committee v. Lynn,
408 F. Supp. 1323 cited in 42 U.S.C.A. 4332.
fact, it is highly improbable for the case to proceed to

the trial stage since the Supreme Court, as a matter of
due process, ordered that all TLA holders be
impleaded as indispensable parties. The implication,
it seems to me, is that evidence must be shown
against each TLA holder. One can only surmise how
much this will cost and how much time it will take. In
the meantime, our forests continued and continues to
be denuded. In fact, at an annual 28 U.S. v. Students
Challenging Regulatory Agency Procedures, 412 U.S.
669 and Sierra Club v. Morton, 405 U.S. 727 cited in
61A Am Jur 2d, Pollution Control, §35. Injury to
aesthetic and environmental interest has been
recognized as laying a sufficient foundation for
standing. Save the Courthouse Committee v. Lynn,
408 F. Supp. 1323 cited in 42 U.S.C.A. 4332.
deforestation rate of 100,000 hectares per annum,
three hundred thousand hectares of forests were lost
while the case was pending from 1990-1993.29
4. THE JUDICIARY AND THE ENVIRONMENTAL
DILEMMA: THE OPERATIONAL CODE
In analyzing the operational code of the Judiciary's
role in environmental protection, the practical
question that must be posed is whether the Judiciary
is equipped to deal with environmental disputes. On
a more constructive note, a better way of phrasing the
question is to ask what the judiciary needs so that its
involvement in such disputes would be efficient,
scientifically sound and equitable.
Answering these questions require a discussion of the
nature of environmental disputes.
29
See MASTER PLAN FOR FORESTRY DEVELOPMENT (1990), 2.
(a) What is an environmentalproblem?

The classical definition of the environmental problem
is that it is a "commons" question. Since the publi-
cation of Garrett Hardin's influential article3 0 in 1968,
the "tragedy of the commons" has become a house-
hold word among social scientists and policymakers
concerned with environmental and natural resource
problems. The concept has been used to explain
overexploitation in fisheries, overgrazing, air and
water population, abuse of public lands, population
problems, extinction of species, fuel wood depletion,
wildlife decline, and other problems of resource
misallocation. Simply put, Hardin's paradigm is that
environmental degradation results from the open
access status of common goods like air, water, forests
and other natural resources. Because these goods are
seen as free goods by all actual and potential users,
there is no attempt to internalize in their usage the
costs of such consumption. The attitude of these users
is "I will get my share without having to pay for it".
Thus, in the free-for-all, environmental degradation
and natural resources depletion becomes inevitable.
Few essays have been as influential as Hardin's, and
few ideas so quickly and widely disseminated. But as
one author would put it: "It would be difficult to
locate another passage of comparable length and
fame containing as many errors. 3 1 Few questioned
Hardin's assumption of individual interest
unchecked by social relations, and his emphasis on
competition (rather than cooperation) as the over-
30 Garrett Hardin, "The Tragedy of the Commons," 162 Science 1243

31
(19 8).
Partia Dasgupta, THE CONTROL OF RESOURCES (1982), in
Runge,6.
riding relationship that shaped interactions among

resource users. Under this perspective, the kneejerk
response is the immediate rejection of common
property management systems as inefficient and
ecologically unsound.
The "commons" paradigm however is useful for an

understanding of the environmental dilemma as, to
use an economic term, an "externality problem". 32 We
cannot deny that in the use of natural resources, the
actual cost to the whole society is usually not
counted. When we allow our loggers for example to
extract our timber resources while imposing
ridiculously low forest charges, we fail to make them
pay not only for the actual value of the extracted
resources but also for the ecological damage their
activities inflict on our natural resource base-
including among others the loss of biological
diversity, the costs of soil erosion and climate
changes, and the deaths and destruction resulting
from flash floods. Or when we allow an industrial
firm to pollute the air or water, we do not usually
count the costs to our health system and to the
productivity of the affected populace.
The usual rationale behind allowing such

externalities is that activities such as logging and
industrial production contribute to society by way of
job creation and contribution to the GNP. The
problem is that in undervaluing the resources
extracted or polluted and in not costing the damage
or injury done we have no real basis for comparing
Herman Daly and John Cobb, FOR THE COMMON GOOD:

32 See
REDIRECTING THE ECONOMY TOWARD COMMUNITY, THE
ENVIRONMENT AND A SUSTAINABLE FUTURE (1989), 37.
the costs and benefits of allowing or disallowing a

particular activity.
This brings us to another way of formulating the

environmental dilemma -as a problem of sustainable
development.
"Sustainable development" is a concept that was first

articulated formally by the World Commission on
Environment and Development, more popularly
known as the Brundtland Commission. In OUR
COMMON FUTURE, the Commission's famous
document, "sustainable development" is present
without compromising the ability to meet those of the
33
future."
The Commission explains why the present generation

is faced with this responsibility:
We borrow environmental capital from future

generations with no intention or prospect of
repaying. They may damn us for our spendthrift
ways, but they can never collect on our debt to
them. We act as we do because we can get away
with it: future generations do not vote; they have
no political or financial power; they cannot
34
challenge our decisions.
Under international law, sustainable development is

now an accepted legal principle. Principle 3 of the Rio
Declaration of 1992 states that
33 World Commission on Environment and Development, OUR

COMMON FUTURE (1987), 40.
34 Id., at 8.
[Tmhe right to development must be fulfilled so as

to equitably meet developmental and environ-
mental needs of present and future generations. 35
Under Philippine Agenda 21, sustainable develop-
ment has also been articulated as a guiding norm for
both economic planning and environmental regu-
lation. In fact as early as Presidential Decree No. 1151
issued by former President Marcos in 1977, the
concept of sustainable development was already
accepted as a policy underpinning our environmental
law. 36
The problem however with the norm of sustainable

development is that it is difficult to operationalize.
Experience shows that even when all parties to an
environmental issue agree that sustainable develop-
ment is to be the goal, divergence in particular
positions with regards to the issue often remain
inevitable. While it is possible for Philippine society
as an abstract collective entity to decide-through
state organs -that an energy project is required for
the development needs of the country and that the
resulting environmental damage can still be absorbed
by the carrying capacity of our natural resource base,
the communities affected by such projects-usually
economically and politically marginalized -do lose
or find their resource base diminished.
RIGHT TO A HEALTHFUL ECOLOGY
For example, a visit today to the site of the Mt. Apo
geothermal plant confirms that while it could be
argued that the project conforms to the sustainable
15 RIO DECLARATION ON ENVIRONMENT AND DEVELOP-

MENT (1992).
36 See Section I of P.D. No. 1151.
development norm from the national or even a

Mindanao-wide perspective, it cannot be denied that
the physical changes in the site has altered Mt. Apo
forever and that the communities which relied on this
part of Mt. Apo for their economic, cultural and
religious needs could no longer do so. In other words,
for almost every environmental issue, one cannot still
avoid the choice of which value to prioritize -
environment or development?
(b) Environmental Disputes
The preceding discussion brings us to different
aspects or types of the disputes that arise from the
environmental dilemma.
First, the dispute on how to measure and compare the
costs and benefits of ecologically harmful activities
and the costs and benefits of preventing or regulating
such activities. Cost effectiveness and economic
efficiency is a valid criterion in determining the
proper approach to environmental issues. The
problem however is that cost-benefit analysis requires
the valuation of all the goods that are relevant to a
particular environmental issue. Unfortunately, up to
the present, economists have not really yet agreed on
how to value ecological "goods" such as biodiversity
or a stable climate. Complicating matters is the need
to develop a valuation formula in which the proper
time scale should span generations, i.e. decades, even
centuries. How then can we evaluate that a particular
approach is truly cost-effective from the perspective
of its ultimate objective? With this difficulty, how
then can we expect a participant like the Judiciary to
deal rationally with environmental disputes?
A typical example of this dispute is the debate over

whether we should impose a commercial logging ban
or not. Knowing that such a ban may lead to among
others wood supply problems and loss of jobs, the
costs of such a ban are obvious and definite-but the
benefits-what society saves if the ban is imposed
and succeeds in helping reverse deforestation -can at
the moment only be qualitative: a chance that our
forest resources may recover, a hope that ten years
after the ban we can resume timber extraction in a
selective and sustainable way, the expectation that
there will be no more deaths from flash floods
resulting from deforestation twenty years from now,
and the optimism that one day we will reap economic
benefits from the biological and genetic resources
hidden in our forests.
Second, environmental disputes are often manifested
as a conflict of specific rights between conflicting
users. In forest resources, the dispute is often between
commercial users such as the timber industry and
forest communities, including indigenous cultural
communities who have been in the forests since time
immemorial. In energy disputes, communities that
need to be relocated or whose quality of life is
adversely affected clash with national priorities such
as power supply and industrialization. In pollution
disputes -involving air, water or waste-again the
rights of communities conflict with the interests of
commercial users and also with the industrial goals of
the country.
The usual form in which this aspect of or kind of
dispute arises in our legal system is through the
resolution of a due process question. Should a timber
license agreement be canceled? Should a project
under Environment Impact Assessment (EIA) be

approved? Should the DENR issue a cease and desist
or closure order against a factory?
In sum, an environmental dispute involves first, a

resolution of what general rights or values to
prioritize in a given concrete situation-a task which
requires a cost-benefit analysis, and second, which
specific legal rights in a conflict should prevail. What
the Judiciary often deals with is only the second
aspect or type of dispute. My contention is that in
both aspects, the judiciary playa necessary and
indispensable role. In Oposa v. Factoran, when the
case comes to trial, both aspects will be present.
While we can predict that our courts can handle the
second aspect with relative ease, I am not as certain if
our judges have the necessary technical and
conceptual equipment to deal with the first type of
dispute.
The limitations of our judiciary also becomes obvious

when we take a look at some of the perspectives that
policymakers take in deciding our specific environ-
mental policies.
DEALING WITH ENVIRONMENTAL DISPUTES:

PERSPECTIVES AND STRATEGIES
I propose to discuss four perspectives that the

judiciary or any other participant in the environ-
mental decision process may adopt singly or
incombination. Most of these perspectives, I submit,
can be justified under the Philippine Constitution and
under our environmental laws. These are:
(1) A "command and control" strategy;

(2) A market based perspective;
(3) Community Based Resource Management

(CBRM); and
(4) Pollution Prevention.
My contention is that when our courts decide on
environmental disputes, they cannot escape from
making a choice on which strategy to uphold. All
these strategies, except probably pollution
prevention, can find a legal text in the myth system
that supports it and stake-holders in environmental
issues-like the government, communities and
industry-will directly or indirectly invoke one or
more strategies.
(a) Command and Control
By "Command and Control", the strategy that is
pursued is that of a superior body-the State laying
down specific standards that all must follow,
monitors compliance with such standards and
enforces such compliance by coercive or other
measures. For example: in the Philippines, the
government through the DENR establishes and
enforces modes of forest utilization through such
measures as "annual allowable cut" and "refores-
tation requirements". In air pollution, the
Environmental Management Bureau of the DENR
lays down and enforces pollution standards, i.e. what
kind and how much emissions a factory is allowed.
The justification for a "command and control"
strategy in the Philippines is the Regalian Doctrine.
This doctrine is also a good illustration of the limited
use of a "command and control strategy".
The premise of the Regalian Doctrine is that all
natural resources in the territory belong to the State
and therefore private ownership or title must

emanate from the State. This view is articulated in
Article XII, Section 2 of the Philippine Constitution
which provides that
[A]U 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 bythe State. With the
exception of agricultural lands, all other natural
resources shall not be alienated.
As a consequence of this claim of ownership over all
natural resources, the Philippine government has
historically sought to monopolize the decision
process on how to utilize these resources. This in turn
has had two adverse environmental results: (a) the
adoption of a short-sighted commercially biased and
extractive utilization policy because the State
consistently favored commercial users, and (b) an
extremely insecure land tenure system within the
forest zones.
For example, included also among lands of the public
domain, because they are usually situated in upland
forest zones, are those lands which have been
occupied by indigenous cultural communities since
time immemorial. By such inclusion, these forest
communities have been effectively disenfranchised of
their rights to their ancestral lands, resulting in their
being categorized as squatters in their own lands.
While there may be a trend towards giving
indigenous cultural communities more access to their
natural resource base, as exemplified for example by
Department Administrative Order No. 2 of the
DENR, Series of 1993, the DENR programs remains to
be based on the premise that ancestral lands are part

of the public domain.
Among the reasons that are frequently cited is the
need to protect these lands, usually located in upland
forest zones, from ecological misuse and degradation.
The implication is that the time-immemorial occu-
pants are incapable of utilizing upland forest
resources in an ecologically sound manner. This is
unfortunate as it ignores the role of upland indigenes
in maintaining an ecologically sound environment.
Because they have been on the land for generations,
these communities possess a wealth of local know-
ledge and concern, including a reverent attitude
toward, as well as a duty to conserve, the natural
bounty around them. Furthermore, it must be pointed
out that the monopolization by the government of the
mandate to protect the forests has clearly not yielded
satisfactory results. Forest denudation continues to
escalate even as commercial users derive the most
profits from upland resources. 37
From the point of view therefore of both equity and

ecology, there is a need to rethink the application of
the Regalian Doctrine to ancestral lands in forest and
other ecologically critical zones. Concretely, the first
step is for the Philippine government to adopt a
restrictive rather than expansive interpretation of the
Regalian Doctrine, an interpretation that finds legal
support in Carino v. Insular Government38 and in the
constitutional provisions recognizing the rights of
37
See La Vifia, Antonio. "Recognition of Ancestral Domains: An
Imperative for a Democratic Upland Resource Management", in
Our Threatened Heritage, edited by Chip Fay, a special issue of
SOLIDARITY (No. 124, October-December, 1989), published by
Solidaridad Publishing House, Manila.
38 41 Phil. 935 (1909).
indigenous cultural communities to their ancestral

domains. 39
Regardless of where one stands on the Regalian
Doctrine, the validity of a "command and control"
strategy as the primary tool for environmental
regulation is increasingly being questioned not only
in the Philippines but globally as well. It has been
criticized as inefficient well as unjust. In the
Philippines, it is also a valid question to ask whether
the Philippine bureaucracy is in a position to enforce
environmental legal norms given its dismal historical
record.
Congress and the Executive Branch historically has
supported a command and control strategy. How-
ever, recent policies indicate a small shift in favor of
market based strategies 40 and community based
resource management systems. 41 On the other hand,
the Judiciary has been consistent in upholding the
traditional conception of the doctrine. Unless it is
willing to reexamine this, I am not so sure if it can
play a positive role in operationalizing the
constitutional right to a sound environment.
39 This interpretation finds constitutional support in Article XII,

Section 5 of the Philippine Constitution which provides that the
State shall protect the rights of indigenous cultural communities to
their ancestral lands to ensure their economic, social and cultural
well-being.
40 See Policy Recommendations of the Policy Studies Component of
the Natural Resources Management Program summarized in its
ENVIRONMENTAL ASSESSMENT - FINAL SCOPING REPORT
(1993). See also proposed Clean Air Act pending in Congress
which borrows the concept of emissions trading from the U.S.
Clean Air Act.
41See DENR Administrative Order No. 2, Series of 1993 - Rules and
Regulations for the Identification, Delineation and recognition of
Ancestral Land and Domain Claims. See also NIPAS Law.
(b) Market Based Strategies
A market-based 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 acti-
vities or economic sanctions to discourage unsustain-
able and pollutive actions. 42 The usual example given
of this approach is the use of taxation and subsidies.
You want to prevent overlogging-tax the activity
heavily instead of prohibiting it, or give incentives for
non-extensive use.
The other mechanism favored by those who advocate
market-based environmental based strategies is that
of "emissions trading". Basically, this mechanism is
premised on the right of industries (or states in
international environmental law) to pollute up to a
certain level that the state (or the collective will of
States) considers allowable. So long as this maximum
level is not exceeded, the regulatory body will not
intervene and will leave it to the industries or states
on how to attain the standard at the lowest possible
cost. Thus, among them, they can trade emission
rights with each other. A firm that finds it cost-
effective to install the most up-to-date technology
will do so and profit because it can then sell its
emission rights rather than install the best
technology.
In the U.S., the market based approach found its first
national legislative articulation in the Clean Air Act
42
For a summary of this development in U. S. environmental law, see
Marshall 1. Breger, Richard B. Stewart, E. Donald Elliott, and
David Hawkins, "Providing Economic Incentives in Environmental
Regulation," 8 Yale J. on Reg. 463(1991).
of 1991. In the Philippines, many policy recommend-

ations made by the Natural Resources Management
Program of the DENR such as lifting of the export
ban on timber and liberalization of the forest industry
follows this approach. With respect to deforestation,
it is argued that the better strategy might be to use a
taxation system to discourage such activity. At the
very least this would ensure that the true costs of the
logging industry's activities are borne by it and that
the whole society benefits from the activity. On the
other hand, a legal framework based on economic
incentives would require that non-extractive use,
particularly by forest communities, be subsidized and
given financial and technical support. However, for
such a framework to be put into place, a central issue
must be addressed: the uncertainty and insecurity of
land tenure in forest zones. Without land tenure
security, no amount of economic incentives will
ensure sustainable utilization.
Although intended to strengthen control, centrali-
zation of proprietary rights to forest lands and
resources in the government have more often
"undermined local rules governing access and use,
removed local incentives for conservation, and
saddled central governments with far-flung responsi-
bilities beyond their administrative capabilities".43 In
every country with extensive tropical rainforests, the
public sector's claims on forest lands and resources
far outstrip its ability to manage or to control
43 Roberto Repetto, THE FOREST FOR THE TREES? GOVERNMENT

POUCIES AND THE MISUSE OF FOREST RESOURCES (1%8),28.
resources. The effect is that the government has

institutionalized an open access situation."
In sum, the market based approach to environmental

regulation 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. But this change or reinterpretation
must be accompanied with a bias for communities of
direct users as against commercial and industrial
users. A market can work only when there is a level
playing field. Unfortunately, because of the disparity
in economic and cultural power, communities are at a
disadvantage when indeed divestment occurs. As a
necessary step therefore, community based resource
management systems must be encouraged and
supported by the state before a market based system
can really work.
(c) Community Based Resource Management
Contrary to the widely-held belief that all

communally-held resources are doomed to suffer
from "the tragedy of the commons", it is now known
that a wide variety of sustainable community
resource management systems do exist.45 This recent
44 C. Ford Runge, "Common Property Resources in A Global

Context," Working Paper, University of Minnesota (April 1990), 18.
On file at the Social Science Library, Yale University.
45
See Robert Rhodes & S.J. Thompson, "Adaptive Strategies in
Alpine Environments: Beyond Ecological Particularism," 2
American Ethnologist 535; B.S. Orlove, ALPACA, SHEEP AND
MEN (1977); David Guillet, AGRARIAN REFORM AND
PEASANT ECONOMY IN SOUTHERN PERU (1979); R. K
Hitchcock, "Traditional Systems of Land Tenure and Agrarian
Reform in Botswana" Journal of African Law, Vol. 24 (1981); A.
Legesse, GADA: THREE APPROACHES TO THE STUDY OF
AFRICAN SOCIErY (1973).
rediscovery of communal institutions as an effective

solution to the commons problem is significant in a
variety of ways. These institutions may have a
valuable role to play in sustainable use planning but
have usually been overlooked or underutilized in the
planning process. This has happened because of over-
emphasis on the kinds of resource management
practices dominant in the Western industrialized
world in which the significance of common property
institutions have declined over time.
Community based resource management systems can
range from the right of the community to be
consulted before any development project is imposed
on it to actually recognizing community control and
management of natural resources. Recognizing these
systems would also mean developing and accepting
common property regimes in our legal system.
Runge argues that common property regimes are just
as viable as their individual private property
counterparts in terms of efficiency and equity. In a
number of cases, he says, communal property
structures play "a key role in the effective manage-
ment of scarce natural resources, complementing and
combining with private rights to promote both equity
and efficiency."46 This can be appreciated, however,
only if a communal system is distinguished from a
"free and open access system"-where there are no
rules regulating individual use rights. 47 Much of the
negative understanding of communal property
regimes emanates from such a misconception.
"Runge.
47Id.
There are four reasons why community based

resource management systems may be more econo-
mically feasible and desirable. First, such a system
"can be relatively less costly to maintain and enforce,
and better adapted to local conditions". Secondly, as a
consequence of the system's institutionalization of
fairness in the face of random allocation of resources,
"common use rights may contribute to social stability
at the same time that they promote efficient
adaptation to changing resource availability over
time". Third, such a system provides a "hedge"
against individual failure. A communal property
system, in this sense, offers more security to the
individual members of the community. Fourth, and
last, "the opportunity costs associated with changing
established practices are high". By this, Runge refers
to the tenacity of the rules under such a society. He
recognizes the linkage between these rules and the
natural and social situation from which such rules
emerge. Thus he concludes that economic develop-
ment should involve the promotion of structures
which take into account and are consistent with the
environment in which resource management is to
occur.4
Increasingly both in Congress and the Executive

Department, lip service is paid to community-based
resource management as an important element of
Philippine environmental strategy. Programs like
social forestry and control or resources and the
community's right to monitor and enforce
environmental norms is increasing. In many ways,
the Local Government Code reflects this philosophy.
Notwithstanding this progress, in terms of actual
48 Id., at 20-22.
NATIONAL LAWS AND POUClES I 113
budgetary allocation as well as emphasis in the

implementation of environmental programs, this
trend to recognize community based resource
management is not reflected. The gap can be
attributed to two reasons: first in the opposition of
those vested interests who have dominated, if not
monopolized, the use of our natural resources, and;
second, a shift to community based resource
management requires a shift in one's fundamental
paradigm, a task that demands stretching one's legal
imagination.
(d) Pollution Prevention
A final strategy that has been proposed in the global
level is that of pollution prevention. Simply put,
environmental policy should just prohibit as many
forms of pollution as possible. This is justified
economically under the principle that all pollution is
a wasted resource and of course, the ethical
justification is obvious. It is however doubtful, given
the poverty of our people and our development
needs, if this is a realistic option for us. However, let
me just observe that an environmental policy
characterized by pollution prevention when coupled
with an extensive program of scientific and
technological development is a way by which we can
leap-frog industrialization and become a post-
industrial, high technology economy.
OTHER PARTICIPANTS AND
ALTERNATIVE FORUMS
At this point, let me just say a word about the other
participants in the environmental decision process.
Allow me also to indicate alternative forums to the
judiciary for the resolution of environmental

disputes.
The executive and legislative branches are of course
significant players in the area of the environment. I
cannot here present a full analysis of their roles.
Suffice it to say that the executive branch-
particularly the different bureaucracies within the
DENR-are the first and primary forums of most
environmental disputes. While the DENR is certainly
better equipped technically to deal with these issues, I
think it is fair to observe that there is much to be done
by the Department to upgrade its organizational
capabilities. In many cases, many environmental
decisions by the DENR are made on the basis of
political exigency rather than by the DENR are made
on the basis of political exigency rather than a
rigorous economic and scientific analysis of issues.
While most environmental decisions must in the final
analysis be political, the space for irrational external
interventions such as corruption and undue political
influence becomes much larger when ignorance or
acceptance of the conventional characterizes a
bureaucracy. This is not to condemn or criticize all
DENR personnel as there are responsive and creative
people in the Department. I make this comment as a
statement only of what still needs to be done.
As to the legislative branch, an analysis of the
environmental laws it has passed in recent years such
as the law on toxic and hazardous wastes and the
National Integrated Protected Areas Act illustrates its
responsiveness to the environmental dilemma.
Legislation on air pollution, on land management, a
total commercial logging ban, a new forestry code,
among others-are on the way to enactment.
Whether the laws that will eventually be passed

would live up to expectations remains to be seen. The
budgetary allocations however to environmental
programs remains inadequate. In particular, the
support given to community-based resource manage-
ment programs is so small that it cannot be really said
that we are giving this strategy a chance.
Aside from the executive and legislative branches,
another alternative forum in environmental disputes
are multilateral and bilateral development assistance
agencies. Whether we like it or not, institutions like
the Asian Development Bank, the World Bank and
the USAID are central and crucial players in
environmental policy-making in the Philippines. By
financing many environmental programs, these
entities participate decisively in the environmental
decision process. And often, more than our Congress
and the DENR, these institutions are more-to use a
technological term-user friendly, i.e. because of their
international political vulnerability, they can be
pressured to modify, suspend or cancel the financing
of environmental programs or projects which have an
adverse effect on the environment. This reality poses
important questions and dilemmas regarding
national sovereignty. It also stresses the importance
of developing domestic forums as viable forums for
environmental dispute resolution.
As to other stakeholders, the most important are
commercial users and communities of direct users.
Commercial users include logging companies, mining
companies, and energy developers. To this sector, the
challenge is to realize and accept the fact that the
days of unrestrained exploitation is over. My
experience with many, not all but a majority, of those
in industry is their refusal to believe this. Hence,

many commercial users, for example loggers, always
go for the jugular -i.e retain as much power as they
can without any willingness to compromise.
A recent example of this unwillingness to compro-
mise is how the logging industry is dealing with the
Industrial Forest Management Agreement (IFMA) -
the legal instrument that is supposed to replace the
TLA as the vehicle for commercial utilization of our
forest resources. Under the original rules and
regulations 49 governing IFMA, a substantial guaran-
tee bond (amounting to approximately P20,000 per
hectare in some cases) was required so as to ensure
that the IFMA holder would comply with its
obligations.
Our historical experience show that no matter what
obligations we impose on our commercial users, our
resources are depleted just the same. This is because
our bureaucracy, for political reasons or because of
corruption, cannot enforce these obligations. The
political economy of our justice system has also made
negligible, if not impossible, redress through the
judicial system. Hence, the guarantee bond as insu-
rance for compliance. The logging industry however
lobbied to repeal this requirement and they
succeeded last December 1993 when DENR Secretary
Angel Alcala replaced the guarantee bond with a
ridiculous performance bond amounting to P20 per
hectare.50
This experience with IMA is also an example of the
potency of multilateral financing institutions in the
See DENR Administrative Order No. 60, Series of 1993.

soSee DENR Administrative Order No. 68, Series of 1993.
NATIoNAL LAWS AND POUCIES I 117
Philippine environmental decision process. Since the

guarantee bond was an ADB conditionality in one of
its loan packages and in all probability the bank
objected to its cancellation, Secretary Alcala subse-
quently suspended last January the cancellation of
the bond pending further consultations.5 1
Fortunately, for all of us, increasingly these
commercial users are confronted legally and often
physically by communities of direct users,5 2 support-
ed by nongovernmental organizations, advocating
community based resource management strategies.
These include indigenous cultural communities
protecting their ancestral domains and peasant and
fisherfolk communities make use of legal strategies
available to them under our system, they also often
resort to self-help-in the process developing the
concept of private enforcement of legal norms. All
over the country today, communities, peoples
organizations, and non-governmental organizations
are at the forefront of environmental protection.
Whether these communities acquire enough strength
before environmental degradation becomes irreversi-
ble is a question that, however, remains open.
CONCLUSION
Let me now conclude this lecture with some final
observations about the role of the judiciary in
enforcing the right to ecological security.
I agree with Justice Feliciano that Oposa v. Factoran,if
affirmed, will result in propelling courts "into the
uncharted ocean of social and economic policy
51 See DENR Memorandum Circular No. 6, Series of 1994.
52Two recent examples are the anti-logging campaigns in San
Fernando, Bulddnon, and Cagayan Valley.
making." As I tried to illustrate in discussing the

operational code of environmental policymaking, this
cannot be avoided. To decide environmental disputes
on the basis of conflict of rights alone, on due process
issues for example, is simply inadequate in dealing
with the environmental dilemma. Courts must learn
the intricacies of resource valuation. In the area of
environment, as in many other emerging fields such
as intellectual property rights and biotechnology,
logic as the main tool of legal construction and
decision-making will simply be inadequate. Indeed,
good environmental decisions are predicated on a
familiarity with the relevant natural and social
sciences.
The challenge to the Judiciary is how to limit its role
in the decision environmental process. The first
obvious tool is to recognize that primary jurisdiction
of most environmental disputes belong to the proper
administrative agencies. The rule on "prior
exhaustion of administrative remedies" should be
followed. But the Judiciary, if it wants to be a player
in the environmental arena, must also begin to equip
itself with the necessary technical and conceptual
tools. A large dose of legal imagination would also be
imperative.
A possible role of the Judiciary-particularly the
Regional Trial Courts-is to serve as brokers in
arriving at acceptable compromises on utilization
and conservation issues. District courts in the
United States have effectively played this role. A
recent example is the ban on logging of old grow
the forests in the Pacific Northwest ordered by a
federal court to compel the U.S. Department of
Interior to come up with a plan that would ensure
the survival of the spotted owl.53
A final point about the judicial role. For the Judiciary
to play an effective and useful rule in the
environmental decision process, we must have good,
efficient and honest judges -particularly at the level
of the Regional Trial Courts. The delay, for example,
which characterizes our court system, militates
against using this as a forum for environmental
disputes. The environment, simply put, cannot 'wait
for the long grind of justice. The tragedy is that
alternative forums will be used, including those
which raises sovereignty questions. Communities
will also have to rely on private enforcement -even
physical force, if there is no viable forum left to them.
That is why I think it is so important for the Judiciary
to be an attractive forum for environmental disputes.
I started writing the paper from which I extracted this
lecture nearly six months ago. I was in my hometown
of Cagayan de Oro at that time to visit my family and
to give a lecture on environmental law in Iligan City
for the U.P. Law Center's POPLAW program. During
the early morning drive to Iligan, I was filled with
sadness as I went through what is now known as the
Cagayan-Iligan Industrial Corridor. In my mind, as I
passed through the rice fields, beaches, coconut lands
and fishing villages that have been so part of my life,
I saw changes coming. In a few years, not much is
going to be left of the beauty of this place. Perhaps
many of the changes will be good -more jobs, more
progress, less poverty. But many of the changes, if we
are not careful, will also not be good. Pollution, urban
53 "Logging Ban on Old-Growthi Foresb," Business World, 28

Februauy 1994,6.
blight, displaced communities. And I asked myself -
how can law be of use in ensuring that the worst does
not happen?
This lecture is an attempt to answer this very
personal question. For in the end, in its deepest
philosophical sense, what is the environmental
question but an ethical challenge posed to all of us:
What does it mean to be human? What is our
relationship with nature? What is the most important
value in our lives? What does it mean to be a
community?
When Dean Agabin asked me for the title of my
lecture, I did not hesitate to use a word from the
Greek poet Homer: Odyssey. I have always been
fascinated by this sequel to Iliad -it always struck me
how victory over Troy did not mean the end of the
journey of Odysseus.
In the same way, a legal recognition of a right is
useless if it cannot be translated into a victory in the
field. And this is really where we are right now in
environmental protection: we are not sure if we can
succeed; we are, as a people, at the beginnings of our
journey, a mission, as it were, to make this country, in
the words of former Senator Diokno, "a nation for our
children."4 Though we can, we will get lost along
the way. And like Odysseus, stranded in the Island of
the Winds and the Land of the Midnight Sun, we will
cry out:
My friends, we do not know east from west, we
don't know where the sun rises to give light to all
54Jose W. Diokno, "A Nation for Our Children" (1984), reprinted in A

NATION FOR OUR CIDLDREN, ed. Priscila S. Manalang (1987),
83.
mankind, and where he goes down under the

earth.
Well then what are we to do? We must try to think
of something at once, and for my part, I can't think
of anything. I have just been up on the cliffs to look
around. We are on some island in the middle of
the sea, with no land in sight. The island is flat,
and I saw smoke rising in the air above ... bushes
and trees.5s
On this note of uncertainty, and also of hope since we

know that Odysseus did find his way home, I end
this lecture. Thank you for your attention.
55Homer, THE ODYSSEY, Tr. W.ILD. Rouse (1937), 116.

CHAMER TWO
Institutional Framework for Environment

and Natural Resources Management
It is often said that the Philippines has comprehensive and

highly advanced laws to protect the environment and
conserve natural resources, but that these laws are poorly
enforced because of financial and technical capacity
limitations. The framework for implementing and enforcing
the laws is crucial in achieving the policy objectives of
protecting the environment and conserving natural
resources.
2.1 Institutional Framework
2.1.1 Executive Branch
The Executive Branch comprises two levels of management.
The national government operates through more than
twenty executive departments and specialized agencies to
deliver basic services and implement national policies,
programs, and projects, including agencies responsible for
environment and natural resources, public works, trans-
portation and communication, trade and industry, economic
and development planning, etc.
The lead environment agency is the Department of
Environment and Natural Resources (DENR), created in 1987
by the Administrative Code (Executive Order No. 192) that
consolidated several government agencies performing ENR
functions. The DENR is primarily responsible for the
conservation, management, development, and proper use of
the country's environment and natural resources, specifically
forest and grazing lands, mineral resources, and lands of the
NAIONAL LAWS AND POLICIES I 123
public domain, as well as the licensing and regulation of all

natural resources.
The DENR is headed by a Secretary, who is appointed by the
President and in whom the authority and responsibility for
exercising the department's mandate is vested. It consists of
the Department Proper, the staff offices, the staff bureaus,
and the regional/provincial/community natural resources
office. The Department Proper consists of the Office of the
Secretary, Offices of Undersecretaries, Offices of Assistant
Secretaries, the Public Affairs Office, the Special Concerns
Office, and the Pollution Adjudication Board (PAB). The staff
bureaus consist of the Forest Management Bureau (FMB),
Lands Management Bureau, Protected Areas and Wildlife
Bureau (PAWB), and Ecosystems Research and Development
Bureau. Two former staff bureaus, the Mines and
Geosciences Bureau and the Environmental Management
Bureau (EMB), have been converted into line bureaus by the
Mining Act and the Clean Air Act. A line bureau operates as
a sub-organization in the department with direct line of
command, usually with its own representative offices, down
to the regional and field offices of the department. For field
operations, the DENR maintains 16 regional offices, 73
provincial offices, and 171 community offices (World Bank
and ADB 2007). The DENR's Regional Environment and
Natural Resources Office is headed by a Regional Executive
Director, who is assisted by four Regional Technical
Directors, one each for forestry, land management, protected
areas and wildlife, and ecosystems research. The DENR
exercises its line functions through these field offices.
There are other agencies with ENR and related functions
outside of the DENR. These include the DENR-attached
agencies such as the National Mapping and Resource
Information Authority, the Natural Resources Development
Corporation, the Laguna Lake Development Authority, and
the National Water Resources Board. The other major

agencies with ENR management functions include the
Department of Agriculture (DA) and its Bureau of Fisheries
and Aquatic Resources (BFAR), the Department of Energy;
the Department of Health, the National Commission on
Indigenous Peoples (NCIP), the National Power Corporation,
and the Philippine National Oil Company. Moreover, even
agencies not traditionally associated with ENR functions,
such as the Department of Trade and Industry, the
Department of Transportation and Communication, and the
Department of Public Works and Highways, have been given
ENR management roles under the Clean Air Act and the
Clean Water Act.
A couple of other government-owned and controlled
corporations (GOCCs) participate in ENR management, such
as the Philippine Forest and the National Resources Mining
and Development Corporation. In addition, there are special
multijurisdictional and coordinative bodies with ENR
functions. These include the Palawan Council for Sustainable
Development, for the province of Palawan, which was
created by the Strategic Environmental Plan (SEP) for
Palawan Act (Republic Act No. 7611) to implement the SEP
for Palawan. In addition, newer laws created multisectoral
bodies to govern various ENR sectors, such as the Protected
Area Management Board under the NIPAS Act, the Fisheries
and Aquatic Resources Management Councils under the
Fisheries Code, the Airshed Governing Board under the
Clean Air Act, the National Solid Waste Management
Commission under the Solid Waste Management Act, and
the Water Quality Management Board under the Clean
Water Act.
Local Governments
The other level is the local government, which are
autonomous sub-units that exercise both corporate and
NATIoNAL LAWS AND POLICIES I 125
governing functions. There are three levels of local
government units (LGUs): provincial; city and municipal;
and barangay or village. Currently, there are 80 provinces,
138 cities, 1496 municipalities 8 and about 40,000 barangays
in the Philippines.
The Local Government Code of 1992 (R.A. No. 7160) sets the
general powers and functions of LGUs, including levying
taxes, generating other revenues and sharing in benefits from
the use of natural resources. Congress may delegate other
powers and functions to LGUs by special laws, such as
specific responsibilities to manage natural resources and
protect the environment. Local legislative councils
(Sanggunian) may enact ordinances and resolutions
consistent with the powers and functions delegated by
Congress in the relevant national laws.
Table 4. Devolved ENR functions
Law Section Function Responsi-
ble LGU
Local Sec. 17 (2) implementation of Municipa-
Govern- community-based forestry lity
ment projects which include
Code, integrated social forestry
R.A. No. programs and similar
7160 projects; management and
(1991) control of communal
forests with an area not
exceeding fifty (50) square
kilometers; establishment
of tree parks, greenbelts,
and similar forest
development projects
28 National Statistical Coordination Board (2011).

ble LGU
Sec. 17 (3) enforcement of forestry Province
laws limited to
community-based forestry
projects, pollution control
law, small-scale mining
law, and other laws on the
protection of the
environment; and mini-
hydroelectric projects for
local purposes
Sec. 484 (1)Formulation of The Local
measures for the Environ-
consideration of the ment and
sanggunian and provide Natural
technical assistance and Resources
support to the governor or Office
mayor, as the case may be,
in carrying out measures
to ensure the delivery of
basic services and
provision of adequate
facilities relative to
environment and natural
resources services as
provided for under
Section 17 of this Code;
(2) Development of plans

and strategies and upon
approval thereof, by the
governor or mayor, as the
case may be, and
implementation of the
same, particularly those
which have to do with
resources programs and
NATIONAL LAWS AND POUCIES 1 127

ble LGU
projects which the
governor or mayor is
empowered to implement
and which the sanggunian
is empowered to provide
for under this Code;
(3) Establishment,
maintenance, protection
and preservation of
communal forests,
watersheds, tree parks,
mangroves, greenbelts and
similar forest projects and
commercial forest, like
industrial tree farms and
agro-forestry projects;
(4) Provision of extension

services to beneficiaries of
forest development
projects and technical,
financial and
infrastructure assistance;
(5) Management and

maintenance of seed banks
and production seedlings
for forest and tree parks;
(6) Provision of extension

services to beneficiaries of
forest development
projects and rendition of
assistance for natural
resources-related
conservation and

ble LGU
utilization activities
consistent with ecological
balance;
(7) Promotion of the

small-scale mining and
utilization of mineral
resources, particularly
mining of gold;
(8)Coordination with
government agencies and
non-governmental
organizations in the
implementation of
measures to prevent and
control land, air and water
pollution with the
assistance of the
Department of
Environment and Natural
Resources;
(9) Positioning in the

frontline of the delivery of
services concerning the
resources, particularly in
the renewal and
rehabilitation of the
environment during and
in the aftermath of man-
made and natural
calamities and disasters;
(10) Recommendation to
the sanggunian and advise

ble LGU
to the governor or mayor,
as the case may be, on all
matters relative to the
protection, conservation
madmum utilization,
application of appropriate
technology and other
matters related to the
resources
Fishe- Sec. 6 With consultation with Concerned
ries Fisheries and Aquatic LGUs
Code Resources Management (Municipal
Councils (FARMCs), and ity or City)
determination the license
fees of fishery activity in
municipal waters.
Sec. 8 With consultation with
FARMCs, the
establishment of catch
ceilings in municipal
waters and fishery
management areas.
Sec. 9 In consultation with the
Secretary of the
Department of Agriculture
and FARMCs, the
determination of which
municipal waters, fishery
management areas and
other areas reserved for
the use of municipal
fisherfolk shall be affected
by a closed season.
Sec. 14 In coordination with the
Department of
Agriculture, FARMCs, the

ble LGU
private sector and other
agencies, the
establishment of a
monitoring, control and
surveillance system.
Sec. 15 Determination of fees for
the export of all fish and
fishery products (to defray
administrative costs) and
issue auxiliary invoices.
Sec. 16 Enforcement of all fishery
laws, rules and regulations
as well as valid fishery
ordinances enacted by the
municipality/city council
may group and coordinate
with other LGUs
bordering contiguous
fishery resources to
achieve the objectives of
the integrated fishery
resource management. The
FARMCs shall serve as
their venue.
Sec. 17 Municipal/City council
shall have the authority to
grant fishery rights
pursuant to Art. 149 of the
Local Government Code
Sec. 18 Municipal or city
government may,
pursuant to an ordinance,
authorize or permit small
and medium commercial
fishing vessels to operate
in municipal waters
conditionally.

ble LGU
Sec. 19 Maintenance of a registry
of municipal fisherfolk,
who are fishing or may
desire to fish in municipal
waters for the purpose of
determining priorities
among them, of limiting
entry into the municipal
waters, and of monitoring
fishing activities and/or
other related purposes.
In consultation with
FARMCs, the formulation
of the necessary
mechanisms for inclusion
or exclusion procedures
that shall be most
beneficial to resident
municipal fisherfolk
With assistance of
FARMCs, maintenance of
a registry of municipal
fishing vessels by type of
gear and other boat
particulars.
Sec. 22 Grant of demarcated
fishery rights to fishery
organizations/cooperatives
for mariculture operation
in specific areas identified
by the Department of
Agriculture.
Sec. 23 With the Department of
Agriculture, the
determination of whether
a municipal water is
overfished or in danger of
132 J PHILIPPINE LAW AND ECOLOGY

ble LGU
being overfished based on
available data or
information.
Prohibition or limitation of
fishery activities in
overfished waters or
waters in danger of being
overfished.
Sec. 24 With the Department of
Agriculture, provision of
support to municipal
fisherfolk through
appropriate technology
and research, credit,
production and marketing
assistance and other
services such as, but not
limited to training for
additional/supplementary
livelihood.
Sec. 50 In coordination with the
Department, other
concerned agencies and
FARMCs, determination
of which abandoned,
undeveloped or
underutilized fishponds
covered by Fishpond
Lease Agreements can be
reverted to their original
mangrove state.
The taking of all steps
necessary to restore such
areas in their original
mangrove state.
Sec. 51 Designation of zones for
the construction and

ble LGU
operation of fish pens, fish
capes, fish traps and other
structures for the culture
of fish and other fishery
products.
In consultation with
of the area to be utilized
by individuals, for this
purpose.
Sec. 52 The granting of Pearl Farm
leases to qualified persons
who possess the necessary
capital and technology.
Sec. 56 In consultation with
of the distance from the
defined migration path of
migratory fish species
within which there shall
be no obstruction, where
construction is prohibited.
Sec. 57 Prescription of minimum
standards for fish
hatcheries, fish breeding
facilities and private
fishponds; and
maintenance a registry for
such
Sec. 59 Coordination with the
private sector and other
concerned agencies and
FARMCs in the
establishment of post-
harvest facilities for
fishing communities such
as, but not limited to,
134 PHILIPPINE LAW AND ECOLOGY

ble LGU
municipal fish landing
sites, fish ports, ice plants
and cold storage and other
fish processing
establishments to serve
primarily the needs of
municipal fisherfolk.
Sec. 60 Prescription of minimum
standards for post-harvest
facilities such as fish
processing plants, ice
plants, and cold storages,
fish ports/landings and
other fishery business
establishments; and
maintenance a registry for
such.
Sec. 62 Through an ordinance,
penalization of fraudulent
practices and unlawful
possession or use of
instruments of weights
and measures in fishery
transactions.
Sec. 64 (i) Coordination of efforts
relating to fishery
production with the
BFAR, primary fishery
producers, FARMCs,
fishery organizations/
cooperatives.
(j) coordination with the
BFAR on the maintenance
of proper sanitation and
hygienic practices in fish
markets and fish landing
______ J. _______ L
areas.
__________________ I
NA'nONAL LAWS AND PoucIEs I 135

ble LGU
(m) coordination with the
BFAR and other concerned
agencies for the
establishment of
productivity enhancing
and market development
programs in fishing
communities to enable
women to engage in other
fisheries/economic
activities and contribute
significantly to
development efforts
(n) consultation with the
BFAR in the enforcement
of all laws, formulation
and enforcement of all
rules and regulations
governing the
conservation and
management of fishery
resources, except in
municipal waters, and to
settle conflicts of resource
use and allocation
Sec. 69 Consultation, orientation
and assistance to fisherfolk
organizations/cooperatives
and NGOs in the locality
in the formation of
FARMCs
Sec. 73 Creation of the Barangay
Fisheries and Aquatic
Resources Management
Councils (BFARMCs) and
the Lake-wide Fisheries
and Aquatic Resources
ble LGU
Management Councils
(LFARMCs whenever
necessary.
Sec. 80 In consultation with
FARMCs, the
recommendation to the
that a portion of the
municipal waters beyond
15 kilometers from the
shoreline be declared as
fishery reserves for special
or limited use, for
educational, research,
and/or special
manaoement vurvoses.
Sec. 81 In consultation with the
FARMCs, the
establishment of fishery
refuges and sanctuaries in
municipal waters.
Sec. 88 (1) Endorsement to the
Department of
Agriculture, the use of
electricity, poisonous or
noxious substances to
catch, take or gather fish
or fishery species, for
research, educational or
scientific purposes only,
subject to such safeguards
and conditions deemed
necessary,
Sec. 107 The consultation by the
in the issuance of Fishery
Administrative Orders or
NA'iONAL LAWS AND POUCES I 137
ble LGU
regulations for the
conservation,
preservation, management
and sustainable
development of fishery
and aquatic resources.
Sec. 124 Authorization of law
enforcement officers of the
LGU in the enforcement of
this Code and other
fishery laws, rules and
regulations.
Clean Sec. 5 Designation of Member to Concern-
Water Governing Board of ed LGU
Act Management Area
Sec. 6 The preparation and
implementation of
contingency plans and
other measures.. .for the
protection of health and
welfare of the residents
within potentially affected
areas within non-
attainment areas.
Sec. 7 1. The assistance of
DPWH in preparing a
national program for
sewerage and septage
management
2. Appropriation of land
for construction of the
sewage and/or septage
treatment facilities
3. Raising of funds to
subsidize operation and

ble LGU
maintenance expenses of
sewerage treatment or
septage facility
Sec. 8 Coordination with the
Agency required to
connect existing sewage
lines to sewerage system
. m
Sec. 17 The entrance into

agreements with DENR
for incorporation of
"programmatic
environmental impact
assessment into the
preparation, and the
updating or revision of
local land use plans and
area development plans"
Sec. 19 1. The assumption of
Sec. 20 some responsibility
regarding some aspects of
water quality management
and regulation for the Act
in its territorial jurisdiction
upon determination of the
DENR of its readiness and
technical capability
2. prepare compliance
scheme
Sec. 21 The coordination with
DENR and other
government agencies and
private sector to formulate
appropriate incentives for
the adoption procedures
that will preserve and
protect our water bodies
NATONAL LAWS AND POUCES I 139

ble LGU
Sec. 26 Incentivization for LGU to
undertake effective water
quality management and
other programs which will
implement the Act
Sec. 27 "Non-compliance of the
LGU with the Water
Quality Framework and
Management Area Action
Plan" will subject local
government officials to
sanctions
Clean Sec. 2 Regulation of nuisance Concern-
Air Act Sec. 8 and pollution ed LGUs
(R.A. The Department shall,
8749) with public participation,
formulate and implement
an air quality control
action plan consistent with
Sec. 7, which will include
enforcement of emission
limitiations and other
control measures.
Sec. 20 Ban on incineration

Sec. 21 ) The exhaust emission limit
of gaseous pollutants as a
function of the given
reference mass, for light
commercial vehicles.
Sec. 24 Pollution from smoking

Sec. 31 Measures of monitoring
Sec. 36 green house gases
Sec. 39 Local Government Units
IRR Sec. (LGUs) shall share the
13 responsibility in the

ble LGU
management and
maintenance of air quality
within their territorial
jurisdiction.
Public Education and
.,._ _ Information Campaign
Solid Sec. 10 Implementation and All LGUs
waste enforcement of the (Province,
manage provisions of R.A. No. Municipal-
ment 9003 within their ity, City,
under respective jurisdictions Barangay)
the Sec. 10 Segregation and collection Barangay
Ecolo- of solid waste, specifically
gical for biodegradable,
Solid compostable and reusable
Waste wastes
Manage Sec. 10 Collection of non- Municipal-
ment recyclable materials and ity/City
Act special wastes
(R.A. Sec. 11 Establishment of Province
9003) Provincial Solid Waste
Management Boards
Sec. 12 Establishment of Municipal-
Municipal or City Solid ity/City
Waste Management
Boards
Sec. 16 Ordering the LGUs Province,
concerned to prepare their Municipal-
respective 10-year solid ity/City
waste management plans
consistent with the
national solid waste
management framework
Sec. 32 Establishment of LGU Barangay/
Materials Recovery Cluster-
Facility Barangay
Sec. 44 Consolidation or A.
All~LOUs
Ala____________
Cosldto or

ble LGU
coordination of efforts,
services, and resources for
purposes of jointly
addressing common solid
waste management
problems and/or
establishing common
waste disposal facilities
Sec. 5 (d) LGUs shall be advised of LGUs of
National (5) (i) the date of hearing at least area
Integrat thirty (30) days prior and affected
ed shall be invited to submit
Protecte their views on the
d Areas proposed action at the
System hearing not later than
Act thirty (30) days following
(Republi the date of the hearing.
c 7586) Sec. 11 (a) The head of the LGU shall
appoint a representative as
a member of the Protected
Area Management Board
(except the Provincial
Development Officer who
shall serve ex officio)
Magna Sec. 10 The Secretary of Trade and Concerned
Cartafor Industry in consultation LGU
Countrys with the Secretaries of
ide and Finance, Labor, and
Baran- Health, and the local
gay government units shall
Enter- formulate and prepare the
prises necessary rules and
(Kala- regulations to implement
kalan 20) the provisions of this Act
(R.A. within one hundred
6810) twenty (120) days. The
rules and regulations

ble LGU
issued pursuant to this
section shall take effect
fifteen (15) days after
publication in a
newspaper of general
circulation and by such
other means as the
Secretary of Trade and
Industry may deem
reasonably sufficient to
give interested parties
general notice of such
issuance.
2.1.2 Congress and Local Legislatures
The legislature participates in ENR management in two

significant ways: through the enactment of ENR legislation
and the enactment of appropriation laws. Specific functions
were also imposed under certain ENR laws. A legislative
enactment is necessary to establish a protected area under
the NIPAS Act. Congressional oversight committees were
created under the Clean Air Act, the Ecological Solid Waste
Management Act, and the Clean Water Act. Table 2 above
lists down the major environmental laws.
Local councils (Sangguniang Panlalawigan, Sangguniang

Lungsod/Bayan and Sangguniang Barangay) exercise
legislative functions pursuant to delegated powers granted
by Congress. The scope of these powers is specified in the
Local Government Code.
2.1.3 Judiciary
The judiciary influences ENR management through its

power of judicial review. Trial courts have jurisdiction over
criminal cases for offenses defined under ENR laws.

Meanwhile, in pollution and mining cases the DENR's
Pollution Adjudication Board and Mines Adjudication Board
have exclusive original jurisdiction, and courts only have
appellate jurisdiction. Early in 2008, the Supreme Court
designated 84 branches of first-level courts and 31 branches
of second level courts as special Environmental Courts, with
jurisdiction to try and decide violations of environmental
laws. This was done based on an inventory and assessment
of pending environmental cases whose objective is to
improve efficiency in the administration of justice, and to
provide greater access to environmental justice, by having
these courts in places where environmental violations were
shown to be most frequent and by providing judges with
specialized skills and knowledge relevant to the cases
prevalent in their area.
Judicial review is defined as the power to settle actual
controversies involving rights which are legally demandable
and enforceable, and to determine whether or not there has
been a grave abuse of discretion amounting to lack or excess
of jurisdiction on the part of any branch or instrumentality of
the government29 . Specifically, courts (i) adjudicate "conflicts
and violations that arise out of the implementation or
enforcement of laws dealing with the use of natural
resources and impact of human activities on public health
and the ecosystem; "' 30 and decide on the just apportionment
of limited resources. 31 All single first- and second-level
courts are considered special courts for this purpose.
29Const. (1987), art. VIII, §1 (Phil.).

30Consuelo Ynares-Santiago, Framework for Strengthening Environmental
Adjudication in the Philippines,Paper presented at Asian Justices Forum on the
Environment, Manila, July 6-7, 2007.
31Hilario Davide, The Role of Courts in Environmental Protection, in PHILJA
Judicial Journal (vol. 6, issue 20, 2004).
MMDA et al. vs. Concerned Citizens of Manila Bay
G.R. No. 171947-48, December 18,2008
The need to address environmental pollution, as a cause of

climate change, has of late gained the attention of the
international community. Media have finally trained their
sights on the ill effects of pollution, the destruction of
forests and other critical habitats, oil spills, and the
unabated improper disposal of garbage. And rightly so, for
the magnitude of environmental destruction is now on a
scale few ever foresaw and the wound no longer simply
heals by itself. But amidst hard evidence and clear signs of
a climate crisis that need bold action, the voice of cynicism,
naysayers, and procrastinators can still be heard.
This case turns on government agencies and their officers
who, by the nature of their respective offices or by direct
statutory command, are tasked to protect and preserve, at
the first instance, our internal waters, rivers, shores, and
seas polluted by human activities. To most of these
agencies and their official complement, the pollution
menace does not seem to carry the high national priority it
deserves, if their track records are to be the norm. Their
cavalier attitude towards solving, if not mitigating, the
environmental pollution problem, is a sad commentary on
bureaucratic efficiency and commitment.
At the core of the case is the Manila Bay, a place with a

proud historic past, once brimming with marine life and,
for so many decades in the past, a spot for different contact
recreation activities, but now a dirty and slowly dying
expanse mainly because of the abject official indifference of
people and institutions that could have otherwise made a
difference.
This case started when, on January 29, 1999, respondents

Concerned Residents of Manila Bay filed a complaint
before the Regional Trial Court (RTC) in Imus, Cavite
against several government agencies, among them the
NAnONAL LAWS AND POLICIES 1 145
petitioners, for the cleanup, rehabilitation, and protection

of the Manila Bay.
xxx
Inter alia, respondents, as plaintiffs a quo, prayed that

petitioners be ordered to clean the Manila Bay and submit
to the RTC a concerted concrete plan of action for the
purpose.
xxx
Generally, the writ of mandamus lies to require the

execution of a ministerial duty. A ministerial duty is one
that "requires neither the exercise of official discretion nor
judgment." It connotes an act in which nothing is left to the
discretion of the person executing it. It is a "simple, definite
duty arising under conditions admitted or proved to exist
and imposed by law." Mandamus is available to compel
action, when refused, on matters involving discretion, but
not to direct the exercise of judgment or discretion one way
or the other.
Petitioners maintain that the MMDA's duty to take

measures and maintain adequate solid waste and liquid
disposal systems necessarily involves policy evaluation
and the exercise of judgment on the part of the agency
concerned. They argue that the MMDA, in carrying out its
mandate, has to make decisions, including choosing where
a landfill should be located by undertaking feasibility
studies and cost estimates, all of which entail the exercise
of discretion.
Respondents, on the other hand, counter that the statutory

command is clear and that petitioners' duty to comply
with and act according to the clear mandate of the law
does not require the exercise of discretion. According to
respondents, petitioners, the MMDA in particular, are
without discretion, for example, to choose which bodies of
water they are to clean up, or which discharge or spill they
are to contain. By the same token, respondents maintain
that petitioners are bereft of discretion on whether or not to

alleviate the problem of solid and liquid waste disposal; in
other words, it is the MMDA's ministerial duty to attend to
such services.
We agree with respondents.
First off, we wish to state that petitioners' obligation to

perform their duties as defined by law, on one hand, and
how they are to carry out such duties, on the other, are two
different concepts. While the implementation of the
MMDA's mandated tasks may entail a decision-making
process, the enforcement of the law or the very act of doing
what the law exacts to be done is ministerial in nature and
may be compelled by mandamus. We said so in Social
Justice Society v. Atienza in which the Court directed the
City of Manila to enforce, as a matter of ministerial duty,
its Ordinance No. 8027 directing the three big local oil
players to cease and desist from operating their business in
the so-called "Pandacan Terminals" within six months
from the effectivity of the ordinance. But to illustrate with
respect to the instant case, the MMDA's duty to put up an
adequate and appropriate sanitary landfill and solid waste
and liquid disposal as well as other alternative garbage
disposal systems is ministerial, its duty being a statutory
imposition. The MMDA's duty in this regard is spelled out
in Sec. 3(c) of Republic Act No. (RA) 7924 creating the
MMDA. This section defines and delineates the scope of
the MMDA's waste disposal services to include:
Solid waste disposal and management which

include formulation and implementation of poli-
cies, standards, programs and projects for proper
and sanitary waste disposal. It shall likewise
include the establishment and operation of
sanitary land fill and related facilities and the
implementation of other alternative programs
intended to reduce, reuse and recycle solid waste.
The MMDA is duty-bound to comply with Sec. 41 of the

Ecological Solid Waste Management Act (RA 9003), which
prescribes the minimum criteria for the establishment of
sanitary landfills, and Sec. 42, which provides the
minimum operating requirements that each site operator
shall maintain in the operation of a sanitary landfill.
Complementing Sec. 41 are Secs. 36 and 37 of RA 9003,
enjoining the MMDA and local government units, among
others, after the effectivity of the law on February 15, 2001,
from using and operating open dumps for solid waste and
disallowing, five years after such effectivity, the use of
controlled dumps.
The MMDA's duty in the area of solid waste disposal, as

may be noted, is set forth not only in the Environment
Code (PD 1152) and RA 9003, but in its charter as well. This
duty of putting up a proper waste disposal system cannot
be characterized as discretionary, for, as earlier stated,
discretion presupposes the power or right given by law to
public functionaries to act officially according to their
judgment or conscience. A discretionary duty is one that
"allows a person to exercise judgment and choose to
perform or not to perform." Any suggestion that the
MMDA has the option whether or not to perform its solid
waste disposal-related duties ought to be dismissed for
want of legal basis.
A perusal of other petitioners' respective charters or like

enabling statutes and pertinent laws would yield this
conclusion: these government agencies are enjoined, as a
matter of statutory obligation, to perform certain functions
relating directly or indirectly to the cleanup, rehabilitation,
protection, and preservation of the Manila Bay. They are
precluded from choosing not to perform these duties.
In the light of the ongoing environmental degradation, the

Court wishes to emphasize the extreme necessity for all
concerned executive departments and agencies to
immediately act and discharge their respective official
duties and obligations. Indeed, time is of the essence;
hence, there is a need to set timetables for the performance

and completion of the tasks, some of them as defined for
them by law and the nature of their respective offices and
mandates.
The importance of the Manila Bay as a sea resource,

playground, and as a historical landmark cannot be over-
emphasized. It is not yet too late in the day to restore the
Manila Bay to its former splendor and bring back the
plants and sea life that once thrived in its blue waters. But
the tasks ahead, daunting as they may be, could only be
accomplished if those mandated, with the help and
cooperation of all civic-minded individuals, would put
their minds to these tasks and take responsibility. This
means that the State, through petitioners, has to take the
lead in the preservation and protection of the Manila Bay.
The era of delays, procrastination, and ad hoc measures is

over. Petitioners must transcend their limitations, real or
imaginary, and buckle down to work before the problem at
hand becomes unmanageable. Thus, we must reiterate that
different government agencies and instrumentalities
cannot shirk from their mandates; they must perform their
basic functions in cleaning up and rehabilitating the
Manila Bay. We are disturbed by petitioners' hiding
behind two untenable claims: (1) that there ought to be a
specific pollution incident before they are required to act;
and (2) that the cleanup of the bay is a discretionary duty.
WHEREFORE, judgment is hereby rendered ordering the

abovenamed defendant-government agencies to clean up,
rehabilitate, and preserve Manila Bay, and restore and
maintain its waters to SB level (Class B sea waters per
Water Classification Tables under DENR Administrative
Order No. 34 [1990]) to make them fit for swimming, skin-
diving, and other forms of contact recreation. xxx
In light of the Order of the Supreme Court for the

responsible government agencies to dean up Manila Bay,
and recognizing that compliance will take years, the Court
created the Manila Bay Advisory Committee to assist the

Court in determining compliance. Justice Presbitero J.
Velasco, Jr., who penned the decision, chairs the Advisory
Committee, with members including (then) SC Assistant
Court Administrator Jose Midas P. Marquez as Vice-Chair
and former Department Environment and Natural Resources
(DENR) Secretary Elisea G. Gozun, former DENR
Undersecretary Dr. Antonio G.M. La Vifia, and (former)
University of the Philippines Marine Science Institute
Director Dr. Gil S. Jacinto as members. All three Committee
members, who will assist in evaluating compliance by the
concerned government agencies, are environmental experts
in their own fields of governance, law and natural sciences.
2.1.4 Quasi-Judicial Agencies
Some executive agencies, such as the Pollution Adjudication
Board and the Mines Adjudication Board, exercise
adjudication powers in relation to their function as resource
manager. The Laguna Lake Development Authority also
exercises quasi-judicial functions in conjunction with its
regulatory responsibilities in keeping Laguna de Bay clean
and productive.
2.1.5 Non-Government Institutions
Participation by citizens and citizens' organizations in ENR
management can either be through participation in decision-
making and policy making (e.g. as member of the Protected
Area Management Board) or through participation in the
direct management of the resource (e.g. through community-
based forest management agreement).
The private sector (generally referring to business or
industry sector) participates in environment and natural
resources management in two ways: through corporate
social responsibility (CSR) programs that promote
community and environmental health, and in investing in

business or industry that depend on natural resources (e.g.
eco-tourism, mining, commercial tree plantations etc). The
private sector is also represented in many multisectoral
bodies created under different environmental laws.
No Place Like Manila

In the last 20 years, I have been a constant homo viator,
traveling all over the world mostly to work on
environmental issues. My Facebook profile says I have been
to 248 cities in 45 countries, although I am pretty sure I have
been to more cities and countries than these. However, as
beautiful, grand or otherwise interesting as all these cities
are, to me, there is no place like Metro Manila. After my
hometown Cagayan de Oro, it is Manila that I always look
for and always in my mind, as the Hotdog song goes.
It is not that Metro Manila is the most beautiful city in the

world. In fact, it is ugly, noisy, dirty, and messy. It has
grown without design and planning, in fact against many
good urban development norms. About 13% of the national
population call Metro Manila home; it accounts for about
33% of the country's gross domestic product (GDP), so it is
no surprise that residents from Bulacan in the north, to
Cavite and Laguna in the south, and Rizal in the east, make
the weekly, sometimes even daily trek to the city for work.
Malls sprawl as apartment buildings rise; industries fade as

call centers and white-collar businesses take over; and the
network of roads and highways, pipes and sewers, power
lines and cell towers grow like vines on a wall to continually
enlarge Metro Manila. The view from the air reveals that
Metro Manila is a place built on water - it should therefore
be managed that way. Instead, we have built on Pasig River,
Laguna Lake and other waterways and reclaimed land
recklessly. We have also allowed the proliferation of
settlements in unsuitable and dangerous places.
All of these mistakes come together in the problem of

pollution in Manila Bay. In 2008, the Supreme Court had to
order its clean-up and, in an unprecedented move, retained
jurisdiction over the case on a continuing mandamus until
the executive branch complied with the Court's order. The
key agency to making Manila better is the Metropolitan
Manila Development Authority (MMDA). The MMDA is in
charge of coordinating the successful development of the
megatropolis, and delivering some basic services common
to all its constituent units, such as traffic management and
water, garbage disposal and air quality control, disaster
response and urban land use and zoning regulations. While
the MMDA Chairman is not the "mayor" of Metro Manila,
he still exercises similar awesome responsibilities as that
godlike mayor of the videogame SimCity, affecting the lives
of over eleven million people who call Metro Manila home.
It is an unenviable task.
The MMDA has, at times, courted a measure of controversy,

and some voices have clamored for its dissolution. Such
calls are misplaced, though, for even in the absence of the
MMDA, Metro Manila will still need inter-city coordination
and management at a high level. Certainly the MMDA can
be reformed, augmented, and streamlined as necessary.
Even controversial programs like Metro Manila
beautification should be pursued but in a just and humane
manner. The rapid rise of commercial centers like Mall of
Asia and the North EDSA area, beacons of commerce like
Makati and Pasig City, call for a well-thought out traffic
management and public transportation scheme that lets
roads and commuters breathe freely. As urban migration
and the growth of urban population continue, residential
zones must be properly set - and enforced - with due
respect to environmental management and disaster risk
reduction, to avoid another Ondoy. Garbage must be
reduced and disposed of safely, while the daily demand for
water must be met without tapping wells dry. These are
challenges that no one Metro Manila mayor alone can
handle.
From a psychological point of view, for residents and

visitors alike to Metro Manila, the biggest challenge is
unlocking traffic in Epifanio Delos Santos Avenue (EDSA).
As one colleague pointed out, we should make solving this
issue a national project because of its potential as a
showcase for good governance, and I agree. There is also
historic value in choosing EDSA as a national project, as the
highway has become the preferred venue of our
contemporary revolutions. In my view, the MMDA has not
been remiss in trying to find solutions to this problem but it
has to try harder and be more creative. Of course, it has to
be consultative and get the support of the people for radical
solutions as we saw recently in the opposition to restoring
the odd-even scheme for all vehicles plying the EDSA route.
The task of MMDA may be unenviable, but with a good

leader at the helm, accompanied by good policies and
supported by an effective team, I have confidence that it can
done. It should be so that for generations to come, there will
always be no place like Manila.
Taken from:
EAGLE EYES - Dean Tony La Vina
2 November 2010, Manila Standard Today
CHAf"ER THREE
Environmental Impact Assessment

and Development Planning
3.1 Rationale
In 1977, President Ferdinand Marcos laid down the
foundations of a comprehensive policy to protect the
environment through a system of environmental impact
assessment. The rationale for the Philippine Environmental
Policy (Presidential Decree No. 1151) was stated as follows:
WHEREAS, the individual and, at times, conflicting

demands of population growth, urbanization, industrial
expansion, rapid natural resources utilization and
increasing 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 another;
and
WHEREAS, there is now an urgent need to formulate an

intensive, integrated program of environmental protection
that will bring about a concerted effort towards the pro-
tection of the entire spectrum of the environment through
a requirement of environmental impact assessments and
statements;
The specific provisions of the policy already hinted at

concepts of sustainable development and intergenerational
responsibility that will become buzzwords in decades to
come.
153
Section 1. Policy. - It 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
fulfill the social, economic and other requirements of
present and future generations of Filipino, and (c) to insure
the attainment of an environmental quality that is
conducive to a life of dignity and well-being.
Section 2. Goal.-In pursuing this policy, it shall be the

responsibility of the Government, in cooperation with
concerned private organizations and entities, to use all
practicable means, consistent with other essential
considerations of national policy, in promoting the general
welfare to the end that the Nation may (a) recognize,
discharge and fulfill the responsibilities of each generation
as trustee and guardian of the environment for succeeding
generations, (b) to assure the people of a safe, decent,
healthful, productive and aesthetic environment, (c)
encourage the widest exploitation of the environment
without degrading it, or endangering human life, health
and safety or creating conditions adverse to agriculture,
commerce 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 non-renewable resources.
Section 3. Right to a Healthy Environment.-In furtherance

of these goals and policies, the Government recognizes the
right of the people to a healthy environment. It shall be the
duty and responsibility of each individual to contribute to
the preservation and enhancement of the Philippine
environment.
Section 4. Environmental Impact Statements. -Pursuant to

the above enunciated policies and goals, all agencies and
instrumentalities of the national government, including
government-owned or controlled corporations, as well as
private corporations, firms and entities shall prepare, file
and include in every action, project or undertaking which

significantly affects the quality of the environment a
detailed statement on:
* the environmental impact of the proposed action,

project or undertaking;
* any adverse environmental effect which cannot be
avoided should the proposal be implemented;
* alternative to the proposed action;
" 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
" whenever a proposal involve the use of depletable
or non-renewable 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
comment on the draft environmental impact statement
made by the lead agency within thirty (30) days from
receipt of the same.
The simple requirement for an environmental impact

statement has now become an elaborate process of scientific
study, review and stakeholder participation in the evaluation
and approval of development activities that have potential
negative impacts on the environment.
The Revised Procedural Manual for DAO 2003-30 defines

what an EIA is and its purpose:
Definition-An Environmental Impact Assessment (EIA) is

a "process that involves predicting and evaluating the
likely impacts of a project (including cumulative impacts)
on the environment during construction, commissioning,
operation and abandonment. It also includes designing
appropriate preventive, mitigating and enhancement
measures addressing these consequences to protect the

environment and the community's welfare."
Purpose of the EIA Process- As a basic principle, EIA is used

to enhance planning and guide decision-making. In this
Manual, EIA is primarily presented in the context of a
requirement to integrate environmental concerns in the
planning process of projects at the feasibility stage.
Through the EIA Process, adverse environmental impacts
of proposed actions are considerably reduced through a
reiterative review process of project citing, design and
other alternatives, and the subsequent formulation of
environmental management and monitoring plans. A
positive determination by the DENR-EMB results to (sic)
the issuance of an Environmental Compliance Commit-
ment (ECC) document, to be conformed to by the
Proponent and represents the project's Environmental
Compliance Certificate. The release of the ECC allows the
project to proceed to the next stage of project planning,
which is the acquisition of approvals from other
government agencies and LGUs, after which the project
can start implementation.
The EIA Process in Relation to the Project Cycle-a) The EIA
study shall determine the environmental impacts of the
project and shall provide recommendations/guidance at
various stages of the project cycle. It is during the
Feasibility Study (FS) stage when a Proponent defines its
range of actions and consider project alternatives, thus, it is
the most ideal stage in the project cycle wherein the EIA
study will have most added value. EIA documents are
ideally prepared when prospective proposals are more
concrete than mere concept and are preferably available
before the project has reached a stage of investment or
commitment towards implementation. Proponents are in
fact directed under Malacaftang Administrative Order No.
42 to conduct simultaneously the environmental impact
study and the project planning or Feasibility Study (FS).
The Environmental Impact Statement that is based on an EIA

process is a generic tool to be used by project proponents in
evaluating the potential environmental effects of their
proposed projects. While this is a useful tool, it does not
describe the specific targets of government in pursuing
economic development while protecting the environment.
For that we need to look at the development plans of
government, specifically, the national development plan and
local development plans of LGUs.
Section 3.2 looks at the legal requirements for the project-
based EIA process, and the requirements and guidelines for
local development planning. Section 3.3 provides a snapshot
of the Philippine Development Plan (2011-2016) as it relates
to the goals of protecting the environment and conserving
natural resources.
3.2 Legalframework
Presidential Decree No. 1586 provides the legal basis for
requiring an EIA that the project proponent then reports to
the government to secure an Environmental Compliance
Certificate. There is a very wide range of projects covered by
the System and each type of project may require project-
specific studies. The President listed down the various
categories of environmentally critical projects and well as
areas that are most vulnerable (environmentally critical) to
ensure careful consideration of the impacts of development
activities on the environment.
Establishing An Environmental Impact
Statement System xxx
Presidential Decree No. 1586 (1978)
Section 1. Policy.-It is hereby declared the policy of the
State to attain and maintain a rational and orderly balance
between socio-economic growth and environmental
protection.
Section 2. EnvironmentalImpact Statement System. -There is
hereby established a Environmental Impact Statement
System founded and based on the environmental impact
statement required, under Section 4 of Presidential Decree
No. 1151, of all agencies and instrumentalities of the
national government, including government- owned or
controlled corporations, as well as private corporations,
firms and entities for every proposed project and
undertaking which significantly affect the quality of the
environment.
xxx
Section 4. Presidential Proclamation of Environmentally

Critical Areas and Projects.-The President of the
Philippines may, on his own initiative or upon
recommendation of the National Environmental Protection
Council, by proclamation declare certain projects,
undertakings or areas in the country as environmentally
critical. No person, partnership or corporation shall
undertake or operate any such declared environmentally
critical project or area without first securing an
Environmental Compliance Certificate issued by the
President or his duly authorized representative. xxx
Section 5. Environmentally Non-Critical Projects.-All other

projects, undertakings and areas not declared by the
Presidents as environmentally critical shall be considered
as non-critical and shall not be required to submit an
environmental impact statement. The National
Environmental Protection Council, thru the Ministry of
Human Settlements may however require non-critical
projects and undertakings to provide additional
environmental safeguards as it may deem necessary.
Section 9. Penalty for Violation. -Any person, corporation

or partnership found violating Section 4 of this Decree, or
the terms and conditions in the issuance of the
Environmental Compliance Certificate, or of the standards,
rules and regulations issued by the National
Environmental Protection Council (now the Environmental

Management Bureau- DENR) pursuant to this Decree shall
be punished the suspension or cancellation of his/its
certificate and/or a fine in an amount not to exceed fifty
thousand pesos (50,000.00) for every violation thereof, at
the discretion of the National Environmental Protection
Council.
Section 10. Environmental Revolving Fund.-Proceeds from

the penalties prescribed in the preceding Section 9 and
other penalties imposed by the National Pollution Control
Commission (now EMB-DENR) as authorized in P.D. 984
shall be automatically appropriated into an Environment
Revolving Fund hereby created as an exemption to P.D.
711 and P.D. 1234. The fund shall be used exclusively for
the operations of the National Environmental Protection
Council and the National Pollution Control Commission in
the implementation of this Decree. The rules and
regulations for the utilization of this fund shall be
formulated by the Ministry of Human Settlements and
submitted to the President for approval.
Based on Section 4 of PD 1586, Presidential Proclamation

No. 2146 was issued on December 14, 1981, proclaiming the
following areas and types of projects as environmentally
critical and within the scope of the Environmental Impact
Statement System:
A. Environmentally Critical Projects
I. Heavy Industries
a. Non-ferrous metal industries

b. Iron and steel mills
c. Petroleum and petro-chemical industries
including oil and gas
d. Smelting plants
II. Resource Extractive Industries
a. Major mining and quarrying projects

b. Forestry projects
1. Logging
2. Major wood processing projects
3. Introduction of fauna (exotic-animals) in
public/private forests
4. Forest occupancy
5. Extraction of mangrove products
6. Grazing
c. Fishery Projects
1. Dikes for/and fishpond development

projects
III. Infrastructure Projects
a. Major dams
b. Major power plants (fossil-fueled, nuclear
fueled, hydroelectric or geothermal)
c. Major reclamation projects
d. Major roads and bridges
B. Environmentally Critical Areas
1. All areas declared by law as national parks,

watershed reserves, wildlife preserves and
sanctuaries;
2. Areas set aside as aesthetic potential tourist spots;
3. Areas which constitute the habitat for any
endangered or threatened species of indigenous
Philippine Wildlife (flora and fauna);
4. Areas of unique historic, archaeological, or
scientific interests;
5. Areas which are traditionally occupied by cultural
communities or tribes;
6. Areas frequently visited and/or hard-hit by natural

calamities (geologic hazards, floods, typhoons,
volcanic activity, etc.);
7. Areas with critical slopes;
8. Areas classified as prime agricultural lands;
9. Recharged areas of aquifers;
10. Water bodies characterized by one or any
combination of the following conditions;
a. tapped for domestic purposes

b. within the controlled and/or protected
areas declared by appropriate authorities
c. which support wildlife and fishery
activities
11. Mangrove areas characterized by one or any

combination of the following conditions:
a. with primary pristine and dense young

growth;
b. adjoining mouth of major river systems;
c. near or adjacent to traditional productive
fry or fishing grounds;
d. which act as natural buffers against shore
erosion, strong winds and storm floods;
e. on which people are dependent for their
livelihood.
12. Coral reefs, characterized by one or any
combinations of the following conditions:
a. with 50% and above live coralline cover;

b. spawning and nursery grounds for fish;
c. which act as natural breakwater of
coastlines.
Implementing Rules and Regulations (IRR) for the Philippine

Environmental Impact Statement (EIS) System
DENR Administrative Order No. 2003-30
Section 1. Basic Policy and Operating Principles
Consistent with the principles of sustainable development,

it is the policy of the DENR to implement a systems-
oriented and integrated approach to the EIS system to
ensure a rational balance between socio-econonic
development and environmental protection for the benefit
of present and future generations.
The following are the key operating principles in the

implementation of the Philippine EIS System:
a) The EIS System is concerned primarily with assessing

the direct and indirect impacts of a project on the
biophysical and human environment and ensuring that
these impacts are addressed by appropriate environ-
mental protection and enhancement measures.
b) The EIS System aids proponents in incorporating
environmental considerations in planning their
projects as well as in determining the environment's
impact on their project.
c) Project proponents are responsible for determining
and disclosing all relevant information necessary for a
methodical assessment of the environmental impacts
of their projects;
d) The review of the EIS by EMB shall be guided by three
general criteria: (1) that environmental considerations
are integrated into the overall project planning, (2) that
the assessment is technically sound and proposed
environmental mitigation measures are effective, and
(3) that social acceptability is based on informed public
participation;
e) Effective regulatory review of the EIS depends largely
on timely, full, and accurate disclosure of relevant
information by project proponents and other stake-
holders in the EIA process;
f) The social acceptability of a project is a result of

meaningful public participation, which shall be
assessed as part of the Environmental Compliance
Certificate (ECC) application, based on concerns
related to the project's environmental impacts;
g) The timelines prescribed by this Order, within which
an Environmental Compliance Certificate must be
issued or denied, apply only to processes and actions
within the Environmental Management Bureau's
(EMB) control and do not include actions or activities
that are the responsibility of the proponent.
Section 2. Objective
The objective of this Administrative Order is to rationalize

and streamline the EIS System to make it more effective as
a project planning and management tool by:
h) Making the System more responsive to the demands

and needs of the project proponents and the various
stakeholders;
i) Clarifying the coverage of the System, and updating it
to take into consideration industrial and technological
innovations and trends;
j) Standardizing requirements to ensure focus on critical
environment parameters;
k) Simplifying procedures for processing ECC appli-
cations, and establishing measures to ensure adherence
to ECC conditions by project proponents, and
1) Assuring that critical environmental concerns are
addressed during project development and imple-
mentation.
xxx
Section 4. Scope of the EIS System
4.1 In general, only projects that pose potential significant

impact to the environment shall be required to secure
ECC's. In coordination with the Department of Trade and
Industry (DTI) and other concerned government agencies,
the EMB is authorized to update or make appropriate

revisions to the technical guidelines for EIS System
implementation.
4.2 The issuance of ECC or CNC for a project under the

EIS System does not exempt the proponent from securing
other government permits and clearances as required by
other laws.
In determining the scope of the EIS System, two factors are

considered: (i) the nature of the project and its potential to
cause significant negative environmental impacts, and (ii)
the sensitivity or vulnerability of environmental resources
in the project area.
4.3 The specific criteria for determining projects or

undertakings to be covered by the EIS System are as
follows:
1. Characteristics of the project or undertaking
• Size of the project

* Cumulative nature of impacts vis-a-vis other
projects
• Use of natural resources
* Generation of waste and environment-related
nuisance
* Environment-related hazards and risk of accidents
2. Location of the Project
• Vulnerability of the project area to disturbances due to

its ecological importance, endangered or protected
status
* Conformity of the proposed project to existing land
use, based on approved zoning or on national laws
and regulations
• Relative abundance, quality and regenerative capacity
of natural resources in the area, including the impact
absorptive capacity of the environment
3. Nature of the potential impact

* Geographic extent of the impact and size of affected
population
* Magnitude and complexity of the impact
* Likelihood, duration, frequency, and reversibility of
the impact
The following are the categories of projects/undertakings

under the EIS system:
CategoryA. Environmentally Critical Projects (ECPs)

with significant potential to cause negative environ-
mental impacts
Category B. Projects that are not categorized as ECPs,

but which may cause negative environmental impacts
because they are located in Environmentally Critical
Areas (ECA's)
Category C Projects intended to directly enhance

environmental quality or address existing environ-
mental problems not falling under Category A or B.
Category D. Projects unlikely to cause adverse environ-

mental impacts.
4.4 Proponents of co-located or single projects that fall

under Category A and B are required to secure ECC. For
co-located projects, the proponent has the option to secure
a Programmatic ECC. For ecozones, ECC application may
be programmatic based on submission of a programmatic
EIS, or locator-specific based on submission of project EIS
by each locator.
4.5 Projects under Category C are required submit Project

Description.
4.6 Projects classified under Category D may secure a
CNC. The EMB-DENR, however, may require such
166 I PHILIPPINE LAW AND ECoLoGY
projects or undertakings to provide additional environ-

mental safeguards as it may deem necessary.
4.7 Projects/undertakings introducing new technologies or

construction technique but which may cause significant
negative environmental impacts shall be required to
submit a Project Description which will be used as basis by
EMB for screening the project and determining its
category.
5.2.1. Environmental Impact Statement (EIS).
The EIS should contain at least the following:
1. EIS Executive Summary;

2. Project Description;
3. Matrix of the scoping agreement identifying critical
issues and concerns, as validated by EMB;
4. Baseline environmental conditions focusing on the
sectors (and resources) most significantly affected by
the proposed action;
5. Impact assessment focused on significant environ-
mental impacts (in relation to project construction/
commissioning, operation and decommissioning),
taking into account cumulative impacts;
6. Environmental Risk Assessment if determined by EMB
as necessary during scoping;
7. Environmental Management Program/Plan;
8. Supporting documents, including technical/socio-
economic data used/generated; certificate of zoning
viability and municipal land use plan, and proof of
consultation with stakeholders;
9. Proposals for Environmental Monitoring and
Guarantee Funds including justification of amount,
when required;
10. Accountability statement of EIA consultants and the
project proponent; and
11. Other clearances and documents that may be
determined and agreed upon during scoping.
5.2.2. Initial Environmental Examination (IEE) Report
IEE Report is similar to an EIS, but with reduced details of

data and depth of assessment and discussion.
It may be customized for different types of projects under

Category B. The EMB shall coordinate with relevant
government agencies and the private sector to customize
and update IEE Checklists to further streamline ECC
processing, especially for small and medium enterprises.
xxx
5.2.5. Environmental Performance Report and Manage-

ment Plan (EPRMP).
The EPRMP shall contain the following:
1. Project Description;
2. Baseline conditions for critical environmental para-
meters;
3. Documentation of the environmental performance
based on the current/past environmental management
measures implemented;
4. Detailed comparative description of the proposed
project expansion and/or process modification with
corresponding material and energy balances in the
case of process industries, and
5. EMP based on an environmental management system
framework and standard set by EMB.
5.2.6. Project Description (PD)
The PD shall be guided by the definition of terms and shall

contain the following:
1. Description of the project;

2. Location and area covered;
3. Capitalization and manpower requirement;
4. For process industries, a listing of raw materials to be
used, description of the process or manufacturing
technology, type and volume of products and

discharges;
5. For Category C projects, a detailed description on how
environmental efficiency and overall performance
improvement will be attained, or how an existing
environmental problem will be effectively solved or
mitigated by the project; and
6. A detailed location map of the impacted site showing
relevant features (e.g. slope, topography, human
settlements);
7. Timelines for construction and commissioning.
5.3 Public Hearing/Consultation Requirements
For projects under Category A-i, the conduct of public

hearing as part of the EIS review is mandatory unless
otherwise determined by EMB. For all other undertakings,
a public hearing is not mandatory unless specifically
required by EMB.
Proponents should initiate public consultations early in
order to ensure that environmentally relevant concerns of
stakeholders are taken into consideration in the EIA study
and the formulation of the management plan. All public
consultations and public hearings conducted during the
EIA process are to be documented. The public hearing/
consultation Process report shall be validated by the
EMB/EMB RD and shall constitute part of the records of
the EIA process.
5.3 Public Hearing/Consultation Requirements
For projects under Category A-i, the conduct of public

hearing as part of the EIS review is mandatory unless
otherwise determined by EMB. For all other undertakings,
a public hearing is not mandatory unless specifically
required by EMB.
Proponents should initiate public consultations early in

order to ensure that environmentally relevant concerns of
stakeholders are taken into consideration in the EIA study
and the formulation of the management plan. All public

consultations and public hearings conducted during the
EIA process are to be documented. The public hearing/
consultation Process report shall be validated by the
EMB/EMB RD and shall constitute part of the records of
the EIA process.
5.4 Documentation Requirements for DENR-EMB and

EIA Reviewers
The EMB Central Office as well as the EMB Regional

Offices shall document the proceedings of the ECC
application process and shall set up and maintain relevant
information management systems. The documentation
shall, at a minimum, include the following:
5.4.1. Review Process Report
This is to be prepared by the EMB Central or EMB RO. It is

to be forwarded to the DENR Secretary or RD as reference
for decision-making and maintained as part of the records
on the ECC application. The report should contain at least
the following:
1. Summary of the environmental impacts of the

undertaking, along with the proposed mitigation and
enhancement measures;
2. Key issues/concerns and the proponent's response to
these;
3. Documentation of compliance with procedural
requirements;
4. Acceptability of proposed EMP including the
corresponding cost of mitigation, EGF and EMF if
required;
5. Key bases for the decision on the ECC application.
5.4.2. EIARC Report
This report, to be prepared by the EIA Review Committee,

forms part of the EIS review documentation. The EIARC
Report shall be written by the designated member of the
EIARC and signed by all the members within five days

after the final review meeting. If an EIARC member
dissents, he or she must submit a memorandum to the
EMB Director through the EIARC Chairman his or her
reasons for dissenting.
At a minimum the EIARC report should contain:
1. Detailed assessment of the proposed mitigation and

enhancement measures for the identified environ-
mental impacts and risks;
2. Description of residual or unavoidable environmental
impacts despite proposed mitigation measures;
3. Documentation of compliance with technical/subs-
tantive review criteria;
4. Key issues/concerns and the proponent's response to
these, including social acceptability measures;
5. Assessment of the proposed EMP (including risk
reduction/management plan) and amounts proposed
for the Environmental Guarantee Fund and the
Environmental Monitoring Fund, and
6. Recommended decision regarding the ECC application
as well as proposed ECC conditions.
5.4.3. Decision Document
This is an official letter regarding the decision on the

application. It may be in the form of an Environmental
Compliance Certificate or a Denial Letter. The ECC shall
contain the scope and limitations of the approved
activities, as well as conditions to ensure compliance with
the Environmental Management Plan. The ECC shall also
specify the setting up of an EMF and EGF, if applicable. No
ECC shall be released until the proponent has settled all
liabilities, fines and other obligations with DENR.
A Denial Letter on the other hand shall specify the bases

for the decision.
The ECC or Denial Letter shall be issued directly to the

project proponent or its duly authorized representative,
and receipt of the letter shall be properly documented.
The ECC of a project not implemented within five years

from its date of issuance is deemed expired. The Proponent
shall have to apply for a new ECC if it intends to pursue
the project. The reckoning date of project implementation
is the date of ground breaking, based on the proponent's
work plan as submitted to the EMB.
xxx
Section 9. Monitoring of Projects with ECCs
Post ECC monitoring of projects shall follow these

guidelines. Other details on requirements for monitoring of
projects with ECC's shall be stipulated in a procedural
manual to be formulated by EMB.
9.1 Multipartite Monitoring Team
For projects under Category A, a multi-partite monitoring

team (MMT) shall be formed immediately after the
issuance of an ECC. Proponents required to establish an
MMT shall put up an Environmental Monitoring Fund
(EMF) not later than the initial construction phase of the
project.
The MMT shall be composed of representatives of the

proponent and of stakeholder groups, including repre-
sentatives frym concerned LGU's, locally accredited
NGOs/POs, "the community, concerned EMB Regional
Office, relevant government agencies, and other sectors
that may be identified during the negotiations. The team
shall be tasked to undertake monitoring of compliance
with ECC conditions as well as the EMP. The MMT shall
submit a semi-annual monitoring report within January
and July of each year.
The EMB shall formulate guidelines for operationalizing

area-based or cluster- based MMT. The Bureau may also
develop guidelines for delegating monitoring responsi-
bilities to other relevant government agencies as may be
deemed necessary.
For projects whose significant environmental impacts do
not persist after the construction phase or whose impacts
could be addressed through other regulatory means or
through the mandates of other government agencies, the
operations of MMT may be terminated immediately after
construction or after a reasonable period during
implementation.
9.2 Self-monitoring and Third Party Audit
The proponent shall also conduct regular self-monitoring

of specific parameters indicated in the EMP through its
environmental unit. The proponent's environmental unit
shall submit a semi-annual monitoring report within
January and July of each year.
For projects with ECCs issued based on a PEPRMP,

EPRMP, or an EMS-based EMP, a third party audit may be
undertaken by a qualified environmental or EMS auditor
upon the initiative of the proponent and in lieu of forming
an MMT. The said proponent shall submit to EMB a copy
of the audit findings and shall be held accountable for the
veracity of the report. The EMB may opt to validate the
said report.
9.3 Environmental Guarantee Fund
An Environmental Guarantee Fund (EGF) shall be

established for all co-located or single projects that have
been determined by DENR to pose a significant public risk
or where the project requires rehabilitation or restoration.
An EGF Committee shall be formed to manage the fund. It
shall be composed of representatives from the EMB Central
Office, EMB Regional Office, affected communities,
NATIONAL LAws AND POLICIES I 173
concerned LGU's, and relevant government agencies

identified by EMB.
An integrated MOA on the MMT-EMF-EGF shall be
entered into among the EMB Central Office, EMB Regional
Office, the proponent, and representatives of concerned
stakeholders.
To supplement the details provided in the Implementing
Rules and Regulations of the EIS System, and to facilitate the
preparation EIAs and processing of ECCs, the DENR
adopted a procedural manual that guides preparers and
evaluators step-by-step in complying with the requirements
(Revised Procedural Manual for DAO 2003-30, August
2007).
In the case of Republic vs. City of Davao, the Supreme Court
had an opportunity to scrutinize the power of the DENR in
deciding what to require of a development project that has
potential negative environmental impacts.
Republic vs. City of Davao
G.R. No. 148622, September 12, 2002
xxx On August 11, 2000, respondent filed an application
for a Certificate of Non-Coverage (CNC) for its proposed
project, the Davao City Artica Sports Dome, with the
Environmental Management Bureau (EMB), Region XI.
Attached to the application were the required documents
for its issuance, namely, a) detailed location map of the
project site; b) brief project description; and c) a
certification from the City Planning and Development
Office that the project is not located in an environmentally
critical area (ECA). The EMB Region XI denied the
application after finding that the proposed project was
within an environmentally critical area and ruled that,
pursuant to Section 2, Presidential Decree No. 1586,
otherwise known as the Environmental Impact Statement
System, in relation to Section 4 of Presidential Decree No,
1151, also known as the Philippine Environment Policy, the

City of Davao must undergo the environmental impact
assessment (EIA) process to secure an Environmental
Compliance Certificate (ECC), before it can proceed with
the construction of its project.
Believing that it was entitled to a Certificate of Non-

Coverage, respondent filed a petition for mandamus and
injunction with the Regional Trial Court of Davao,
docketed as Civil Case No. 28,133-2000. It alleged that its
proposed project was neither an environmentally critical
project nor within an environmentally critical area; thus it
was outside the scope of the EIS system. Hence, it was the
ministerial duty of the DENR, through the EMB-Region XI,
to issue a CNC in favor of respondent upon submission of
the required documents.
The Regional Trial Court rendered judgment in favor of

respondent,
xxx
With the supervening change of administration,

respondent, in lieu of a comment, filed a manifestation
expressing its agreement with petitioner that, indeed, it
needs to secure an ECC for its proposed project. It thus
rendered the instant petition moot and academic.
However, for the guidance of the implementors of the EIS
law and pursuant to our symbolic function to educate the
bench and bar, we are inclined to address the issue raised
in this petition.
Section 15 of Republic Act 7160, otherwise known as the
Local Government Code, defines a local government unit
as a body politic and corporate endowed with powers to be
exercised by it in conformity with law. As such, it
performs dual functions, governmental and proprietary.
Governmental functions are those that concern the health,
safety and the advancement of the public good or welfare
as affecting the public generally. Proprietary functions are
those that seek to obtain special corporate benefits or earn

pecuniary profit and intended for private advantage and
benefit. When exercising governmental powers and
performing governmental duties, an LGU is an agency of
the national government. When engaged in corporate
activities, it acts as an agent of the community in the
administration of local affairs.
Found in Section 16 of the Local Government Code is the

duty of the LGUs to promote the people's right to a
balanced ecology. Pursuant to this, an LGU, like the City of
Davao, cannot claim exemption from the coverage of PD
1586. As a body politic endowed with governmental
functions, an LGU has the duty to ensure the quality of the
environment, which is the very same objective of PD 1586.
xxx
Section 4 of PD 1586 clearly states that "no person,

partnership or corporation shall undertake or operate any
such declared environmentally critical project or area
without first securing an Environmental Compliance
Certificate issued by the President or his duly authorized
representative." The Civil Code defines a person as either
natural or juridical. The state and its political subdivisions,
i.e., the local government units are juridical persons.
Undoubtedly therefore, local government units are not
excluded from the coverage of PD 1586.
Lastly, very clear in Section 1 of PD 1586 that said law

intends to implement the policy of the state to achieve a
balance between socio-economic development and
environmental protection, which are the twin goals of
sustainable development. The above-quoted first
paragraph of the Whereas clause stresses that this can only
be possible if we adopt a comprehensive and integrated
environmental protection program where all the sectors
of the community are involved, i.e., the government and
the private sectors. The local government units, as part of
the machinery of the government, cannot therefore be

deemed as outside the scope of the EIS system.
The foregoing arguments, however, presuppose that a

project, for which an Environmental Compliance
Certificate is necessary, is environmentally critical or
within an environmentally critical area. In the case at bar,
respondent has sufficiently shown that the Artica Sports
Dome will not have a significant negative environmental
impact because it is not an environmentally critical project
and it is not located in an environmentally critical area. In
support of this contention, respondent submitted the
following:
1. Certification from the City Planning and Development

Office that the project is not located in an
environmentally critical area;
2. Certification from the Community Environment and
Natural Resources Office (CENRO-West) that the
project area is within the 18-30% slope, is outside the
scope of the NIPAS (R.A. 7586), and not within a
declared watershed area; and
3. Certification from PHILVOCS that the project site is
thirty-seven (37) kilometers southeast of the
southernmost extension of the Davao River Fault and
forty-five (45) kilometers west of the Eastern Mindanao
Fault; and is outside the required minimum buffer zone
of five (5) meters from a fault zone.
The trial court, after a consideration of the evidence, found

that the Artica Sports Dome is not within an
environmentally critical area. Neither is it an environ-
mentally critical project. It is axiomatic that factual
findings of the trial court, when fully supported by the
evidence on record, are binding upon this Court and will
not be disturbed on appeal. This Court is not a trier of
facts.
xxx
Under Article II, Section 1, of the Rules and Regulations

Implementing PD 1586, the declaration of certain projects
or areas as environmentally critical, and which shall fall
within the scope of the Environmental Impact Statement
System, shall be by Presidential Proclamation, in accor-
dance with Section 4 of PD 1586 quoted above.
Pursuant thereto, Proclamation No. 2146 was issued on
December 14, 1981, proclaiming the following areas and
types of projects as environmentally critical and within the
scope of the Environmental Impact Statement System
established under PD 1586:
xxx
The Artica Sports Dome in Langub does not come close to

any of the projects or areas enumerated above. Neither is
it analogous to any of them. It is clear, therefore, that the
said project is not classified as environmentally critical, or
within an environmentally critical area. Consequently, the
DENR has no choice but to issue the Certificate of Non-
Coverage. It becomes its ministerial duty, the performance
of which can be compelled by writ of mandamus, such as
that issued by the trial court in the case at bar.
In the case above, it seems that the Court made a technical
evaluation that the project was not environmentally critical
or located in an environmentally critical area. How did it
determine this factual (and technical) issue? Should it have
been more appropriate for the Court to allow the DENR to
modify its decision, since it is the agency vested with the
power to evaluate and decide?
In a more recent case, the issue of the enforcement of a
reclamation project in the Province of Aklan, specifically
Boracay Island, was raised and decided upon by the
Supreme Court. In this case, the actions of the DENR as the
administrator of the EIS system, and the Province of Aklan as
the project proponent, were called into question.
Boracay Foundation Inc. vs. The Province of Aklan
represented by Governor Carlito S. Marquez, The
Philippine Reclamation Authority, and the DENR-EMB
(Region Vi)
G.R. No. 196870, June 26,2012
Leonardo-De Castro, J:
Petitioner Boracay Foundation, Inc. (petitioner) is a duly

registered, non-stock domestic corporation. Its primary
purpose is "to foster a united, concerted and environment-
conscious development of Boracay Island, thereby
preserving and maintaining its culture, natural beauty and
ecological balance, marking the island as the crown jewel
of Philippine tourism, a prime tourist destination in Asia
and the whole world." It counts among its members at
least sixty (60) owners and representatives of resorts,
hotels, restaurants, and similar institutions; at least five
community organizations; and several environmentally-
conscious residents and advocates.
Respondent Province of Aklan (respondent Province) is a

political subdivision of the government created pursuant
to Republic Act No. 1414, represented by Honorable
Carlito S. Marquez, the Provincial Governor (Governor
Marquez).
Respondent Philippine Reclamation Authority

(respondent PRA), formerly called the Public Estates
Authority (PEA), is a government entity created by
Presidential Decree No. 1084, which states that one of the
purposes for which respondent PRA was created was to
reclaim land, including foreshore and submerged
areas. PEA eventually became the lead agency primarily
responsible for all reclamation projects in the country
under Executive Order No. 525, series of 1979. In June
2006, the President of the Philippines issued Executive
Order No. 543, delegating the power "to approve
reclamation projects to PRA through its governing Board,
subject to compliance with existing laws and rules and
further subject to the condition that reclamation contracts

to be executed with any person or entity (must) go through
public bidding."
Respondent Department of Environment and Natural

Resources - Environmental Management Bureau (DENR-
EMB), Regional Office VI (respondent DENR-EMB RVI), is
the government agency in the Western Visayas Region
authorized to issue environmental compliance certificates
regarding projects that require the environment's
protection and management in the region.
xxx
Boracay Island (Boracay), a tropical paradise located in the
Western Visayas region of the Philippines and one of the
country's most popular tourist destinations, was declared
a tourist zone and marine reserve in 1973 under
Presidential Proclamation No. 1801. The island comprises
the barangaysof Manoc-manoc, Balabag, and Yapak, all
within the municipality of Malay, in the province of Aklan.
xxx
More than a decade ago, respondent Province built the
Caticlan Jetty Port and Passenger Terminal at Barangay
Caticlan to be the main gateway to Boracay. It also built
the corresponding Cagban Jetty Port and Passenger
Terminal to be the receiving end for tourists in
Boracay. Respondent Province operates both ports "to
provide structural facilities suited for locals, tourists and
guests and to provide safety and security measures."
In 2005, Boracay 2010 Summit was held and participated in

by representatives from national government agencies,
local government units (LGUs), and the private sector.
Petitioner was one of the organizers and participants
thereto. The Summit aimed "to re-establish a common
vision of all stakeholders to ensure the conservation,
restoration, and preservation of Boracay Island" and "to
develop an action plan that [would allow] all sectors to
work in concert among and with each other for the long
term benefit and sustainability of the island and the
community." The Summit yielded a Terminal Report
stating that the participants had shared their dream of
having world-class land, water and air infrastructure, as
well as given their observations that government support
was lacking, infrastructure was poor, and, more
importantly, the influx of tourists to Boracay was
increasing. The Report showed that there was a need to
expand the port facilities at Caticlan due to congestion in
the holding area of the existing port, caused by inadequate
facilities, thus tourists suffered long queues while waiting
for the boat ride going to the island.
The Sangguniang Barangayof Caticlan, Malay Municipality,

issued Resolution No. 13, s. 2008 on April 25, 2008 stating
that it had learned that respondent Province had filed an
application with the DENR for a foreshore lease of areas
along the shorelines of Barangay Caticlan, and manifesting
its strong opposition to said application, as the proposed
foreshore lease practically covered almost all the coastlines
of said barangay, thereby technically diminishing its
territorial jurisdiction, once granted, and depriving its
constituents of their statutory right of preference in the
development and utilization of the natural resources
within its jurisdiction.
xxx
On November 20, 2008, the Sangguniang Panlalawiganof

respondent Province approved Resolution No. 2008-369,
formally authorizing Governor Marquez to enter into
negotiations towards the possibility of effecting self-
liquidating and income-producing development and
livelihood projects to be financed through bonds,
debentures, securities, collaterals, notes or other
obligations as provided under Section 299 of the Local
Government Code, with the following priority projects: (a)
renovation/rehabilitation of the Caticlan/Cagban Passenger
Terminal Buildings and Jetty Ports; and (b) reclamation of
a portion of Caticlan foreshore for commercial purposes.
xxx
Governor Marquez sent a letter to respondent PRA on

March 12, 2009 expressing the interest of respondent
Province to reclaim about 2.64 hectares of land along the
foreshores of Barangay Caticlan, Municipality of Malay,
Province of Aklan.
In April 2009, respondent Province entered into an
agreement with the Financial Advisor/Consultant that won
in the bidding process held a month before, to conduct the
necessary feasibility study of the proposed project for the
Renovation/Rehabilitation of the Caticlan Passenger
Terminal Building and Jetty Port, Enhancement and
Recovery of Old Caticlan Coastline, and Reclamation of a
Portion of Foreshore for Commercial Purposes (the Marina
Project), in Malay, Aklan.
Subsequently, on May 7, 2009, the Sangguniang
Panlalawiganof respondent Province issued Resolution
No. 2009-110, which authorized Governor Marquez to file
an application to reclaim the 2.64 hectares of foreshore
area in Caticlan, Malay, Aklan with respondent PRA.
xxx
The Sangguniang Bayan of the Municipality of Malay

expressed its strong opposition to the intended foreshore
lease application, throughResolution No. 044, approved
on July 22, 2009, manifesting therein that respondent
Province's foreshore lease application was for business
enterprise purposes for its benefit, at the expense of the
local government of Malay, which by statutory provisions
was the rightful entity "to develop, utilize and reap
benefits from the natural resources found within its
jurisdiction."
Governo Marquez submitted an Environmental Perfor-

mance Report and Monitoring Program (EPRMP) to
DENR-EMB RVI, which he had attached to his letter dated
September 19, 2009, as an initial step for securing an
Environmental Compliance Certificate (ECC).
xxx
On November 19, 2009, the Sangguniang Panlalawigan

enacted Resolution No. 2009-299 authorizing Governor
Marquez to enter into a Memorandum of Agreement
(MOA) with respondent PRA in the implementation of the
Beach Zone Restoration and Protection Marina
Development Project, which shall reclaim a total of 40
hectares in the areas adjacent to the jetty ports at Barangay
Caticlan and Barangay Manoc-manoc. The Sangguniang
Panlalawiganapproved the terms and conditions of the
necessary agreements for the implementation of the bond
flotation of respondent Province to fund the
renovation/rehabilitation of the existing jetty port by way
of enhancement and recovery of the Old Caticlan shoreline
through reclamation of an area of 2.64 hectares in the
amount of P260,000,000.00 on December 1, 2009.
xxx
On April 27, 2010, DENR-EMB RVI issued to respondent

Province ECC-R6-1003-096-7100 (the questioned ECC) for
Phase 1 of the Reclamation Project to the extent of 2.64
hectares to be done along the Caticlan side beside the
existing jetty port.
xxx
Petitioner claims that during the "public consultation

meeting" belatedly called by respondent Province on June
17, 2010, respondent Province presented the Reclamation
Project and only then detailed the actions that it had
already undertaken, particularly: the issuance of the
Caticlan Super Marina Bonds; the execution of the MOA
with respondent PRA; the alleged conduct of an
Environmental Impact Assessment (EIA) study for the

reclamation project; and the expansion of the
project to forty (40) hectares from 2.64 hectares.
In Resolution No. 046, Series of 2010, adopted on June 23,

2010, the Malay Municipality reiterated its strong
opposition to respondent Province's project and denied its
request for a favorableendorsement of the Marina Project.
xxx
In the meantime, a study was commissioned by the
Philippine Chamber of Commerce and Industry-Boracay
(PCCI-Boracay), funded by the Department of Tourism
(DOT) with the assistance of, among others,
petitioner. The study was conducted in November 2010 by
several marine biologists/experts from the Marine
Environmental Resources Foundation (MERF) of the
UPMSI. The study was intended to determine the
potential impact of a reclamation project in the
hydrodynamics of the strait and on the coastal erosion
patterns in the southern coast of Boracay Island and along
the coast of Caticlan.
xxx
Dr. Villanoy said that the subject project, consisting of 2.64
hectares, would only have insignificanteffect on the
hydrodynamics of the strait traversing the coastline of
Barangay Caticlan and Boracay, hence, there was a distant
possibility that it would affect the Boracay coastline, which
includes the famous white-sand beach of the island.
Thus, on April 6, 2011, the Sangguniang Panlalawiganof

Aklan enacted Resolution No. 2011-065 noting the report
on the survey of the channel between Caticlan and Boracay
conducted by the UPMSI in relation to the effects of the
ongoing reclamation to Boracay beaches, and stating that
Dr. Villanoy had admitted that nowhere in their study was
it pointed out that there would be an adverse effect on the
white-sand beach of Boracay.
On June 1, 2011, petitioner filed the instant Petition for

Environmental Protection Order/Issuance of the Writ of
Continuing Mandamus. On June 7, 2011, this Court issued
a Temporary Environmental Protection Order (TEPO)
and ordered the respondents to file their respective
comments to the petition.
After receiving a copy of the TEPO on June 9, 2011,

respondent Province immediately issued an order to the
Provincial Engineering Office and the concerned contractor
to cease and desist from conducting any construction
activities until further orders from this Court.
The petition is premised on the following grounds:
I.
THE RESPONDENT PROVINCE, PROPONENT OF THE

RECLAMATION PROJECT, FAILED TO COMPLY WITH
RELEVANT RULES AND REGULATIONS IN THE
ACQUISITION OF AN ECC.
A. THE RECLAMATION PROJECT IS CO-LOCATED

WITHIN ENVIRONMENTALLY CRITICAL AREAS
REQUIRING THE PERFORMANCE OF A FULL, OR
PROGRAMMATIC, ENVIRONMENTAL IMPACT
ASSESSMENT.
B. RESPONDENT PROVINCE FAILED TO OBTAIN THE

FAVORABLE ENDORSEMENT OF THE LGU
CONCERNED.
C. RESPONDENT PROVINCE FAILED TO CONDUCT

THE REQUIRED CONSULTATION PROCEDURES
AS REQUIRED BY THE LOCAL GOVERNMENT
CODE.
D. RESPONDENT PROVINCE FAILED TO PERFORM A

FULL ENVIRONMENTAL IMPACT ASSESSMENT
AS REQUIRED BY LAW AND RELEVANT
REGULATIONS.
NATIONAL LAWS AND POLICIES i 185
II.
THE RECLAMATION OF LAND BORDERING THE

STRAIT BETWEEN CATICLAN AND BORACAY SHALL
ADVERSELY AFFECT THE FRAIL ECOLOGICAL
BALANCE OF THE AREA.
Petitioner objects to respondent Province's classification of
the reclamation project as single instead of co-located, as
"non-environmentally critical," and as a mere
"rehabilitation" of the existing jetty port. Petitioner points
out that the reclamation project is on two sites (which are
situated on the opposite sides of Tabon Strait, about 1,200
meters apart):
* 36.82 hectares - Site 1, in Bgy. Caticlan

* 3.18 hectares - Site 2, in Manoc-manoc, Boracay Island
Petitioner argues that respondent Province abused and

exploited the Revised Procedural Manual for DENR
Administrative Order No. 30, Series of 2003 (DENR DAO
2003-30) relating to the acquisition of an ECC by:
1. Declaring the reclamation project under "Group II

Projects-Non-ECP (environmentally critical project)
in ECA (environmentally critical area) based on the
type and size of the area," and
2. Failing to declare the reclamation project as a co-
located project application which would have required
the Province to submit a Programmatic Environmental
Impact Statement (PEIS) or Programmatic Environ-
mental [Performance] Report Management Plan
(PE[P]RMP). (Emphases ours.)
Petitioner further alleges that the Revised Procedural

Manual (on which the classification above is based, which
merely requires an Environmental Impact Statement [EIS]
for Group II projects) is patently ultra vires, and respondent
DENR-EMB RVI committed grave abuse of discretion
because the laws on EIS, namely, Presidential Decree Nos.
1151 and 1586, as well as Presidential Proclamation No.
2146, clearly indicate that projects in environmentally

critical areas are to be immediately considered
environmentally critical. Petitioner complains that
respondent Province applied for an ECC only for Phase
1; hence, unlawfully evading the requirement that co-
located projects within Environmentally Critical Areas
(ECAs) must submit a PEIS and/or a PEPRMP.
The impact assessment allegedly performed gives a

patently erroneous and wrongly-premised appraisal of the
possible environmental impact of the reclamation
project. Petitioner contends that respondent Province's
choice of classification was designed to avoid a
comprehensive impact assessment of the reclamation
project.
xxx
Respondent Province claimed that application for

reclamation of 40 hectares is advantageous to the
Provincial Government considering that its filing fee
would only cost Php20,000.0O plus Value Added Tax
(VAT) which is also the minimum fee as prescribed under
Section 4.2 of Administrative Order No. 2007-2.
Respondent Province considers the instant petition to be

premature; thus, it must necessarily fail for lack of cause of
action due to the failure of petitioner to fully exhaust the
available administrative remedies even before seeking
judicial relief. According to respondent Province, the
petition primarily assailed the decision of respondent
DENR-EMB RVI in granting the ECC for the subject project
consisting of 2.64 hectares and sought the cancellation of
the ECC for alleged failure of respondent Province to
submit proper documentation as required for its
issuance. Hence, the grounds relied upon by petitioner can
be addressed within the confines of administrative
processes provided by law.
Respondent Province believes that under Section 5.4.3 of

DENR Administrative Order No. 2003-30 (DAO 2003-30),
the issuance of an ECC is an official decision of DENR-
EMB RVI on the application of a project proponent. It
cites Section 6 of DENR DAO 2003-30, which provides for
a remedy available to the party aggrieved by the final
decision on the proponent's ECC applications.
xxx
The issue for respondent PRA was whether or not it
approved the respondent Province's 2.64-hectare
reclamation project proposal in willful disregard of alleged
"numerous irregularities" as claimed by petitioner.
xxx
In its Comment dated July 1, 2011, respondent DENR-EMB
RVI asserts that its act of issuing the ECC certifies that the
project had undergone the proper EIA process by
assessing, among others, the direct and indirect impact of
the project on the biophysical and human environment and
ensuring that these impacts are addressed by appropriate
environmental protection and enhancement measures,
pursuant to Presidential Decree No. 1586, the Revised
Procedural Manual for DENR DAO 2003-30, and the
existing rules and regulations.
xxx
Although petitioner insists that the project involves 40
hectares in two sites, respondent DENR-EMB RVI looked
at the documents submitted by respondent Province and
saw that the subject area covered by the ECC application
and subsequently granted with ECC-R6-1003-096-7100
consists only of 2.64 hectares; hence, respondent DENR-
EMB RVI could not comment on the excess area.
Respondent DENR-EMB RVI admits that as regards the
classification of the 2.64-hectare reclamation project
under "Non ECP in ECA," this does not fail within the
definition of a co-located project because the subject
project is merely an expansion of the old Caticlan Jetty
Port, which had a previously issued ECC (ECC No. 0699-

1012-171 on October 12, 1999). Thus, only an EPRMP, not a
PEIS or PEPRMP, is required.
xxx
Respondent DENR-EMB RVI claims that the above two

scientific studies were enough for it to arrive at a best
professional judgment to issue an amended ECC for the
Aklan Marina Project covering 2.64 hectares
xxx
The Court set the case for oral arguments on September 13,
2011.
Meanwhile, on September 8, 2011, respondent Province
filed a Manifestation and Motion praying for the
dismissal of the petition, as the province was no longer
pursuing the implementation of the succeeding phases of
the project due to its inability to comply with Article IV
B.2(3) of the MOA
ISSUES
The Court will now resolve the following issues:
I. Whether or not the petition should be dismissed for

having been rendered moot and academic
II. Whether or not the petition is premature because
petitioner failed to exhaust administrative remedies
before filing this case
IlI. Whether or not respondent Province failed to perform
a full EIA as required by laws and regulations based
on the scope and classification of the project
IV. Whether or not respondent Province complied with all
the requirements under the pertinent laws and
regulations
V. Whether or not there was proper, timely, and sufficient
public consultation for the project
DISCUSSION
On the issue of whether or not the Petition should be
dismissed for having been rendered moot and academic
A close reading of the two LGUs' respective resolutions

would reveal that they are not sufficient to render the
petition moot and academic, as there are explicit conditions
imposed that must be complied with by respondent
Province
The Sangguniang Bayan of Malay obviously imposed

explicit conditions for respondent Province to comply with
on pain of revocation of its endorsement of the project,
including the need to conduct a comprehensive study on
the environmental impact of the reclamation project, which
is the heart of the petition before us. Therefore, the
contents of the two resolutions submitted by respondent
Province do not support its conclusion that the subsequent
favorable endorsement of the LGUs had already addressed
all the issues raised and rendered the instant petition moot
and academic.
On the issue of failure to exhaust administrative
remedies
xxx
We do not agree with respondents' appreciation of the
applicability of the rule on exhaustion of administrative
remedies in this case.
xxx
As petitioner correctly pointed out, the appeal provided

for under Section 6 of DENR DAO 2003-30 is only
applicable, based on the first sentence thereof, if the person
or entity charged with the duty to exhaust the
administrative remedy of appeal to the appropriate
government agency has been a party or has been made a
party in the proceedings wherein the decision to be
appealed was rendered. It has been established by the

facts that petitioner was never made a party to the
proceedings before respondent DENR-EMB
RVI. Petitioner was only informed that the project had
already been approved after the ECC was already granted.
Not being a party to the said proceedings, it does not
appear that petitioner was officially furnished a copy of the
decision, from which the 15-day period to appeal should
be reckoned, and which would warrant the application of
Section 6, Article II of DENR DAO 2003-30.
xxx
The new Rules of Procedure for Environmental Cases,

A.M. No. 09-6-8-SC, provides a relief for petitioner under
the writ of continuing mandamus, which is a special civil
action that may be availed of "to compel the performance
of an act specifically enjoined by law" and which provides
for the issuance of a TEPO "as an auxiliary remedy prior to
the issuance of the writ itself." The Rationale of the said
Rules explains the writ in this wise:
Environmental law highlights the shift in the focal-

point from the initiation of regulation by Congress
to the implementation of regulatory programs by
the appropriate government agencies.
Thus, a government agency's inaction, if any, has serious

implications on the future of environmental law enforce-
ment. Private individuals, to the extent that they seek to
change the scope of the regulatory process, will have to
rely on such agencies to take the initial incentives, which
may require a judicial component. Accordingly, ques-
tions regarding the propriety of an agency's action or
inaction will need to be analyzed.
This point is emphasized in the availability of the remedy

of the writ of mandamus, which allows for the enforcement
of the conduct of the tasks to which the writ pertains: the
performance of a legal duty. (Emphases added.)
The writ of continuing mandamus "permits the court to

retain jurisdiction after judgment in order to ensure the
successful implementation of the reliefs mandated under
the court's decision" and, in order to do this, "the court
may compel the submission of compliance reports from the
respondent government agencies as well as avail of other
means to monitor compliance with its decision."
xxx
We find that the petition was appropriately filed with this

Court under Rule 8, Section 1, A.M. No. 09-6-8-SC, which
reads:
SECTION 1. Petition for continuing mandamus.-

When any agency or instrumentality of the
government or officer thereof unlawfully neglects
the performance of an act which the law
specifically enjoins as a duty resulting from an
office, trust or station in connection with the
enforcement or violation of an environmental law
rule or regulation or a right therein, or unlawfully
excludes another from the use or enjoyment of
such right and there is no other plain, speedy and
adequate remedy in the ordinary course of law, the
person aggrieved thereby may file a verified
petition in the proper court, alleging the facts with
certainty, attaching thereto supporting evidence,
specifying that the petition concerns an
environmental law, rule or regulation, and praying
that judgment be rendered commanding the
respondent to do an act or series of acts until the
judgment is fully satisfied, and to pay damages
sustained by the petitioner by reason of the
malicious neglect to perform the duties of the
respondent, under the law, rules or regulations.
The petition shall also contain a sworn certification
of non-forum shopping.
SECTION 2. Where to file the petition.-The petition

shall be filed with the Regional Trial Court
exercising jurisdiction over the territory where the
actionable neglect or omission occurred or with the
Court of Appeals or the Supreme Court.
On the issues of whether, based on the scope and
classification of the project, a full EIA is required by laws
and regulations, and whether respondent Province
complied with all the requirements under the pertinent
laws and regulations
xxx
The Court notes such manifestation of respondent

Province. Assuming, however, that the area involved in the
subject reclamation project has been limited to 2.64
hectares, this case has not become moot and academic, as
alleged by respondents, because the Court still has to check
whether respondents had complied with all applicable
environmental laws, rules, and regulations pertaining to
the actual reclamation project.
xxx
We recognize at this point that the DENR is the

government agency vested with delegated powers to
review and evaluate all EIA reports, and to grant or deny
ECCs to project proponents. It is the DENR that has the
duty to implement the EIS system. It appears, however,
that respondent DENR-EMB RVI's evaluation of this
reclamation project was problematic, based on the valid
questions raised by petitioner.
Being the administrator of the EIS System, respondent

DENR-EMB RVI's submissions bear great weight in this
case. However, the following are the issues that put in
question the wisdom of respondent DENR-EMB RVI in
issuing the ECC:
1. Its approval of respondent Province's classification of

the project as a mere expansion of the existing jetty
port in Caticlan, instead of classifying it as a new
project;
2. Its classification of the reclamation project as
a single instead of a co-located project;
3. The lack of prior public consultations and approval of
local government agencies; and
4. The lack of comprehensive studies regarding the
impact of the reclamation project to the environment.
The above issues as raised put in question the sufficiency

of the evaluation of the project by respondent DENR-EMB
RVI.
Nature of the project
The first question must be answered by respondent DENR-

EMB RVI as the agency with the expertise and authority to
state whether this is a new project, subject to the more
rigorous environmental impact study requested by
petitioner, or it is a mere expansion of the existing jetty
port facility.
The second issue refers to the classification of the project
by respondent Province, approved by respondent DENR-
EMB RVI, as single instead of co-located.
xxx
The very definition of an EIA points to what was most

likely neglected by respondent Province as project
proponent, and what was in turn overlooked by
respondent DENR-EMB RVI, for it is defined as follows:
An [EIA] is a 'process that involves predicting and

evaluating the likely impacts of a project (including cumu-
lative impacts) on the environment during construction,
commissioning, operation and abandonment. It also
includes designing appropriate preventive, mitigating and
enhancement measures addressing these consequences to
protect the environment and the community's welfare.

(Emphases supplied.)
Thus, the EIA process must have been able to predict the
likely impact of the reclamation project to the environment
and to prevent any harm that may otherwise be caused.
The project now before us involves reclamation of land
that is more than five times the size of the
original reclaimed land.
xxx
We had occasion to emphasize the duty of local
government units to ensure the quality of the environment
under Presidential Decree No. 1586 in Republic of the
Philippinesv. The City of Davao, wherein we held:
Section 15 of Republic Act 7160, otherwise known as the
Local Government Code, defines a local government unit
as a body politic and corporate endowed with powers to be
exercised by it in conformity with law. As such, it
performs dual functions, governmental and proprietary.
Governmental functions are those that concern the health,
safety and the advancement of the public good or welfare
as affecting the public generally. Proprietary functions are
those that seek to obtain special corporate benefits or earn
pecuniary profit and intended for private advantage and
benefit. When exercising governmental powers and
performing governmental duties, an LGU is an agency of
the national government. When engaged in corporate
activities, it acts as an agent of the community in the
administration of local affairs.
Found in Section 16 of the Local Government Code is the
duty of the LGUs to promote the people's right to a
balanced ecology. Pursuant to this, an LGU, like the City
of Davao, cannot claim exemption from the coverage of PD
1586. As a body politic endowed with governmental
functions, an LGU has the duty to ensure the quality of the
environment, which is the very same objective of PD 1586.
xxx
The Court chooses to remand these matters to respondent

DENR-EMB RVI for it to make a proper study, and if it
should find necessary, to require respondent Province to
address these environmental issues raised by petitioner
and submit the correct EIA report as required by the
project's specifications. The Court requires respondent
DENR-EMB RVI to complete its study and submit a report
within a non-extendible period of three months. Res-
pondent DENR-EMB RVI should establish to the Court in
said report why the ECC it issued for the subject project
should not be canceled.
Lack of prior public consultation
xxx
It was necessary for respondent Province to go through
respondent PRA and to execute a MOA, wherein
respondent PRA's authority to reclaim was delegated to
respondent Province.
xxx
In Lina, Jr. v. Patio,we held that Section 27 of the Local

Government Code applies only to 'national programs
and/or projects which are to be implemented in a particular
local community" and that it should be read in conjunction
with Section 26. We held further in this manner:
Thus, the projects and programs mentioned in Section 27

should be interpreted to mean projects and programs
whose effects are among those enumerated in Section 26
and 27, to wit, those that: (1)
may cause pollution; (2) may
bring about climatic change; (3) may cause the depletion of
non-renewable resources; (4) may result in loss of crop
land, range-land, or forest cover; (5) may eradicate certain
animal or plant species from the face of the planet; and (6)
other projects or programs that may call for the eviction of
a particular group of people residing in the locality where
these will be implemented. Obviously, none of these effects

will be produced by the introduction of lotto in the
province of Laguna. (Emphasis added.)
During the oral arguments held on September 13, 2011, it

was established that this project as described above falls
under Section 26 because the commercial establishments to
be built on phase 1, as described in the EPRMP quoted
above, could cause pollution as it could generate garbage,
sewage, and possible toxic fuel discharge.
xxx
Prior consultations and prior approval are required by

law to have been conducted and secured by the
respondent Province.
xxx
The claim of respondent DENR-EMB RVI is that no

permits and/or clearances from National Government
Agencies (NGAs) and LGUs are required pursuant to the
DENR Memorandum Circular No. 2007-08. However, we
still find that the LGC requirements of consultation and
approval apply in this case. This is because a
Memorandum Circular cannot prevail over the Local
Government Code, which is a statute and which enjoys
greater weight under our hierarchy of laws.
The lack of prior public consultation and approval is not

corrected by the subsequent endorsement of the
reclamation project by the Sangguniang BarangayofCaticlan
on February 13, 2012, and the Sangguniang Bayan of the
Municipality of Malay on February 28, 2012, which were
both undoubtedly achieved at the urging and insistence of
respondent Province. As we have established above, the
respective resolutions issued by the LGUs concerned did
not render this petition moot and academic.
WHEREFORE, premises considered, the petition is

hereby PARTIALLY GRANTED. The TEPO issued by this
NATONAL LAWS AND POUClES I 197
Court is hereby converted into a writ of conti-
nuing mandamus specifically as follows:
1. Respondent Department of Environment and Natural

Resources-Environmental Management Bureau
Regional Office VI shall revisit and review the
following matters:
a. its classification of the reclamation project as a

single instead of a co-located project;
b. its approval of respondent Province's classification
of the project as a mere expansion of the existing
jetty port in Caticlan, instead of classifying it as a
new project; and
c. the impact of the reclamation project to the
environment based on new, updated, and
comprehensive studies, which should forthwith be
ordered by respondent DENR-EMB RVI.
2. Respondent Province of Aklan shall perform the
following:
a. fully cooperate with respondent DENR-EMB RVI
in its review of the reclamation project proposal
and submit to the latter the appropriate report and
study; and
b. secure approvals from local government units and
hold proper consultations with non-governmental
organizations and other stakeholders and sectors
concerned as required by Section 27 in relation to
Section 26 of the Local Government Code.
3. Respondent Philippine Reclamation Authority
shall closely monitor the submission by respon-
dent Province of the requirements to be issued by
respondent DENR-EMB RVI in connection to the
environmental concerns raised by petitioner, and
shall coordinate with respondent Province in
modifying the MOA, if necessary, based on the
findings of respondent DENR-EMB RVI.
4. The petitioner Boracay Foundation, Inc. and the

respondents The Province of Aklan, represented
by Governor Carlito S. Marquez, The Philippine
Reclamation Authority, and The DENR-EMB
(Region VI) are mandated to submit their
respective reports to this Court regarding their
compliance with the requirements set forth in this
Decision no later than three (3) months from the
date of promulgation of this Decision.
5. In the meantime, the respondents, their concerned
contractor/s, and/or their agents, representatives or
persons acting in their place or stead, shall
immediately cease and desist from continuing the
implementation of the project covered by ECC-R6-
1003-096-7100 until further orders from this
Court. For this purpose, the respondents shall
report within five (5) days to this Court the status
of the project as of their receipt of this Decision,
copy furnished the petitioner.
This Decision is immediately executory.
SO ORDERED.
The two cases above come in sharp contrast on how the
Court sees as its oversight role over the actions of executive
agencies. In Republic vs. Davao, the Court made its technical
own determination of the nature of the project activity, while
in Boracay Foundation vs. Province of Aklan, the Court gave
the DENR the benefit of correcting its error in making the
technical evaluation.
3.2.1 Local Development Planning
The Local Government Code requires all LGUs to convene
local development councils to prepare the development plan
for the LGU. The composition and functions of the
development councils are provided below:
NATIONAl. LAWS AND POLICIES I 199
SEC. 106. Local Development Councils. - (a) Each local

government unit shall have a comprehensive multisectoral
development plan to be initiated by its development
council and approved by its sanggunian. For this purpose,
the development council at the provincial city, municipal,
or barangay level, shall assist the corresponding
sanggunian in setting the direction of economic and social
development, and coordinating development efforts
within its territorial jurisdiction.
SEC. 107. Composition of Local Development Councils. -

The composition of the local development council shall be
as follows:
(a) The barangay development council shall be headed by
the punong barangay and shall be composed of the
following members:
(1) Members of the sangguniang barangay;

(2) Representatives of non-governmental organization
soperating in the barangay, who shall constitute
not less than one fourth (1/4) of the members of the
fully organized council;
(3) A representative of the congressman.
(b) The city or municipal development council shall be
headed by the mayor and shall be composed of the
following members:
(1) All punong barangays in the city or municipality;

(2) The chairman of the committee on appropriations
of the sangguniang panlungsod or sangguniang
bayan concerned;
(3) The congressman or his representative; and
(4) Representatives of nongovernmental organizations
operating in the city or municipality, as the case
may be, who shall constitute not less than one-
fourth (1/4) of the members of the fully organized
council.
(c) The provincial development council shall be headed by

the governor and shall be composed of the following
members:
(1) All mayors of component cities and municipalities;

(2) The chairman of the committee on appropriations
of the sangguniang panlalawigan;
(3) The congressman or his representative; and
(4) Representatives of nongovernmental organizations
operating in the province, who shall constitute not
less than one-fourth (1/4) of the members of the
fully organized council.
(d) The local development councils may call upon any

local official concerned or any official of national
agencies or offices in the local government unit to
assist in the formulation of their respective
development plans and public investment programs.
SEC. 108. Representation of Non-Governmental Organi-

zations.- Within a period of sixty (60) days from the start
of organization of local development councils, the
nongovernmental organizations shall choose from among
themselves their representatives to said councils. The local
sanggunian concerned shall accredit nongovernmental
organizations subject to such criteria as may be provided
by law.
SEC. 109. Functions of Local Development Councils. -
(a) The provincial, city, and municipal development

councils shall exercise the following functions:
(1) Formulate long-term, medium-term, and annual

socioeconomic development plans and policies;
(2) Formulate the medium-term and annual public
investment programs;
(3) Appraise and prioritize socioeconomic development
programs and projects;
(4) Formulate local investment incentives to promote
the inflow and direction of private investment
capital;
(5) Coordinate, monitor, and evaluate the implemen-
tation of development programs and projects; and
(6) Perform such other functions as may be provided
by law or competent authority.
(b) The barangay development council shall exercise the
following functions:
(1) Mobilize people's participation in local develop-

ment efforts;
(2) Prepare barangay development plans based on
local requirements;
(3) Monitor and evaluate the implementation of
national or local programs and projects; and
(4) Perform such other functions as may be provided
by law or competent authority.
xxx
SEC. 114. Relation of Local Development Councils to the
Sanggunian and the Regional Development Council. -
(a) The policies, programs, and projects proposed by local
development councils shall be submitted to the
sanggunian concerned for appropriate action. The local
development plans approved by their respective
sanggunian may be integrated with the development
plans of the next higher level of local development
council.
(b) The approved development plans of provinces, highly-
urbanized cities, and independent component cities
shall be submitted to the regional development
council, which shall be integrated into the regional
development plan for submission to the National
Economic and Development Authority, in accordance
with existing laws.
SEC. 115. Budget Information.-The Department of Budget

and Management shall furnish the various local
development councils information on financial resources
and budgetary allocations applicable to their respective
jurisdictions to guide them in their planning functions.
The Local Government Code also mandates LGUs to prepae

Comprehensive Land Use Plans (CLUp) that will be the basis
of local zoning ordinances.
Sec. 447(a)(2): (Sangguniang Bayan)
(vii) Adopt a comprehensive land use plan for the

municipality: Provided, That the formulation, adoption, or
modification of said plan shall be in coordination with the
approved provincial comprehensive land use plan;
(ix) Enact integrated zoning ordinances in consonance with

the approved comprehensive land use plan, subject to
existing laws, rules and regulations; establish fire limits or
zones, particularly in populous centers; and regulate the
construction, repair or modification of buildings within
said fire limits or zones in accordance with the provisions
of the Fire Code;
Sec 458(a)(2): (Sangguniang Panglungsod)
(vii) Adopt a comprehensive land use plan for the city:

Provided, That in the case of component cities, the
formulation, adoption or modification of said plan shall be
in coordination with the approved provincial compre-
hensive land use plan;
(ix) Enact integrated zoning ordinances in consonance with

the approved comprehensive land use plan, subject to
existing laws, rules and regulations; establish fire limits or
zones, particularly in populous centers; and regulate the
construction, repair or modification of buildings within
said fire limits or zones in accordance with the provisions
of the Fire Code;
Sec 468(a)(2)(vii). (Sangguninang Panlalawigan) Review

the comprehensive land use plans and zoning ordinances
of component cities and municipalities and adopt a
comprehensive provincial land use plan, subject to existing
laws; xxx
This power of the LGU to determine land-use is specifically

limited by the following provision in the Local Government
Code.
SEC. 20. Reclassification of Lands. -
(a) A city or municipality may, through an ordinance

passed by the sanggunian after conducting public
hearings for the purpose, authorize the reclassification
of agricultural lands and provide for the manner of
their utilization or disposition in the following cases:
(1) when the land ceases to be economically feasible
and sound for agricultural purposes as determined by
the Department of Agriculture or (2) where the land
shall have substantially greater economic value for
residential, commercial, or industrial purposes, as
determined by the sanggunian concerned: Provided,
That such reclassification shall be limited to the
following percentage of the total agricultural land area
at the time of the passage of the ordinance:
(1) For highly urbanized and independent component

cities, fifteen percent (15%);
(2) For component cities and first to third class
municipalities, ten percent (10%); and
(3) For fourth to sixth class municipalities, five percent
(5%): Provided, further, That agricultural lands
distributed to agrarian reform beneficiaries
pursuant to Republic Act Numbered Sixty-six
hundred fifty-seven (R.A. No. 6657), otherwise
known as "rhe Comprehensive Agrarian Reform
Law," shall not be affected by the said
reclassification and the conversion of such lands
into other purposes shall be governed by Section

65 of said Act.
(b) The President may, when public interest so requires

and upon recommendation of the National Economic
and Development Authority, authorize a city or
municipality to reclassify lands in excess of the limits
set in the next preceding paragraph.
(c) The local government units shall, in conformity with
existing laws, continue to prepare their respective
comprehensive land use plans enacted through zoning
ordinances which shall be the primary and dominant
bases for the future use of land resources: Provided,
That the requirements for food production, human
settlements, and industrial expansion shall be taken
into consideration in the preparation of such plans.
(d) Where approval by a national agency is required for
reclassification, such approval shall not be unreason-
ably withheld. Failure to act on a proper and complete
application for reclassification within three (3) months
from receipt of the same shall be deemed as approval
thereof.
(e) Nothing in this Section shall be construed as repealing,
amending, or modifying in any manner the provisions
of R.A. No. 6657.
A Guide to Comprehensive Land Use Plan Preparation

(2006)
The Local Government Code sets the institutional
mechanism and mandate to prepare the CLUP. The Housing
and Land Use Regulatory Board (HLURB) prepared a
guidebook to assist LGUs in the preparation of the CLUP in
order to optimize the usefulness of these plans and for
uniformity across LGUs.32
32
The guidebook, A GUIDE TO COMPREHENSIVE LAND USE PLAN
PREPARATION, approved through Board Resolution No. 789 on 16
This guidebook was developed for LGUs through a

participatory process and is designed to present logical
planning procedures to ensure a balanced and harmonious
development of resources in the LGU. According to the
HLURB, the guidebook is not prescriptive but is designed to
allow flexibility, creativity and analytical thinking on the
part of the user.
This new guide suggests a 12-step process that is
strategic/proactive in approach shows the general procedures
from which the planning team, with or without a formal
training in planning, can proceed with the CLUP and ZO
preparation.
3.3. Policy analysis
3.3.1 Philippine Development Plan (2011-2016)
The Philippines recently approved a new Philippine
Development Plan for 2011-2016 (PDP) that outlines the
policy priorities of the government in the medium-term. The
PDP serves as the template for specific programs and actions
that agencies with specific mandates include in their annual
plans and budgets. The PDP has twin goals of economic
growth and poverty alleviation as components of the overall
goal of inclusive growth.
The Environment and Natural Resources Chapter of the PDP
focuses on three major goals-two of which are directed at
conserving remaining natural resources and preserving a
clean and healthy environment. The third goal emphasizes
February 2006, is the first of a 10-volume Guidelines on the Formulation and

Revision of CLUPs and Planning Strategically.The Guidebook is available for
download at http://hlurb.gov.ph/uploads/agency-profile/lgu/full-text-voll.
pdf.
the need for climate change adaptation and disaster

management.
Under the goal on conservation, the PDP identifies key
strategies, including:
" Sustainably manage forests and watersheds;

" Improve protection and conservation of biodiversity;
" Enhance coastal and marine resources management;
" Improve land administration and management;
" Manage a more equitable utilization of mineral
resources; and
" Develop and implement environment-friendly
enterprise and livelihood opportunities.
Under the goal on improving environmental quality, the
priorities are:
" Reduce air pollution in Metro Manila and other major

urban centers;
" Reduce water pollution to improve water quality in
priority rivers and other economically and ecolo-
gically important water bodies;
" Reduce wastes generated and improve waste
disposal; and
" Establish a healthier and livable urban environment.
Under the goal on enhancing resilience to climate change
impacts, the PDP will:
" Strengthen institutional capacities of national and

local governments for CCA and DRRM;
" Enhance the resilience of natural systems; and
" Improve adaptive capacities of communities.
The environment sector, however, has only a small
contribution to GDP. The goal of conservation is in fact to
improve delivery of ecosystem services (water, power,

waste/pollution control) that underpins the economy that is
based on agriculture, industry and services. At present, it is
very difficult to measure the contribution of the specific
sectors to the economy.
CHArFER FOUR
Forests and Forestland Management
4.1 EnvironmentalSituationer
Barangay Bunga is an upland community of farmers. Over
the past three decades, families have migrated to the area
from the lowlands in search of work, livelihood and a place
to call home. The area used to be a timber concession (TLA)
but abandoned after all the commercially important trees
were cut. The first settlers were workers of the timber
concession. There used to be a few patches of forest trees
punctuating large tracts of cogon and make-shift farms
(through kaingin). Over the years, the settlers have
developed the area into farms, planting rice, corn, sugarcane,
bananas and other cash crops. They have also planted fruit
trees near their homes. Commercial-scale logging goes on
unabated in portions of remaining forests. The settlers are
not aware if these operations are illegal or not, but they
would at times work for these logging operators for odd jobs.
None of the farmers have title to the land, as the entire
barangay is on classified forest land. Property rights (land,
crops, houses) are recognized through "tax declaration" and
customary respect for possession and informal agreements of
sale, rent (arendo) or mortgage (prenda). Kaingin practice
continues as residents clear new areas for farming. Farmers
either use the bigger felled trees for building houses, or for
firewood/charcoal for own use and sale. Despite the
hardships of making a living and lack of access to basic
services, farmers have lived in the area peacefully for
generations.
208
On one occasion, DENR forest guards arrested two farmers

as they were transporting on a carabao sled 10 sacks of
charcoal made from planted madre de cacao trees, assorted cut
lumber (Gmelina species) and a chainsaw. The farmers are
not aware of laws or regulations on forestry; they grew up
with charcoal making as decent livelihood. The chainsaw
that was confiscated was borrowed from a logging operator.
4.2 LegalAnalysis
4.2.1 Land Classification
The legal status of the land determines what activities may or
may not be conducted on these lands. In addition, there are
laws that regulate the cutting of trees and the use of
chainsaws. Following the Regalian Doctrine, all lands are
presumed to be part of the public domain, unless one can
show proof or title of private ownership. Even lands that
have already been occupied, developed and sold to
investors, such as the famous Boracay Island, may still be
public domain.
DENR Secretary et al. vs. Mayor Yap et al.
G.R. No. 167707
(consolidated with G.R. No. 173775), October 8,2008
AT stake in these consolidated cases is the right of the

present occupants of Boracay Island to secure titles over
their occupied lands. xxx
Boracay Island in the Municipality of Malay, Aklan, with
its powdery white sand beaches and warm crystalline
waters, is reputedly a premier Philippine tourist
destination. The island is also home to 12,003 inhabitants
who live in the bone-shaped island's three barangays.
On April 14, 1976, the Department of Environment and
Natural Resources (DENR) approved the National
Reservation Survey of Boracay Island, which identified
several lots as being occupied or claimed by named

persons.
On November 10, 1978, then President Ferdinand Marcos

issued Proclamation No. 1801 declaring Boracay Island,
among other islands, caves and peninsulas in the
Philippines, as tourist zones and marine reserves under the
administration of the Philippine Tourism Authority (PTA).
President Marcos later approved the issuance of PTA
Circular 3-82 dated September 3, 1982, to implement
Proclamation No. 1801. xxx
On May 22, 2006, during the pendency of G.R. No. 167707,

President Gloria Macapagal-Arroyo issued Proclamation
No. 1064 classifying Boracay Island into four hundred (400)
hectares of reserved forest land (protection purposes) and
six hundred twenty-eight and 96/100 (628.96) hectares of
agricultural land (alienable and disposable). The
Proclamation likewise provided for a fifteen-meter buffer
zone on each side of the centerline of roads and trails,
reserved for right-of-way and which shall form part of the
area reserved for forest land protection purposes. xxx
Petitioners-claimants contended that there is no need for a

proclamation reclassifying Boracay into agricultural land.
Being classified as neither mineral nor timber land, the
island is deemed agricultural pursuant to the Philippine
Bill of 1902 and Act No. 926, known as the first Public Land
Act. Thus, their possession in the concept of owner for the
required period entitled them to judicial confirmation of
imperfect title.
Opposing the petition, the OSG argued that petitioners-

claimants do not have a vested right over their occupied
portions in the island. Boracay is an unclassified public
forest land pursuant to Section 3(a) of PD No. 705. Being
public forest, the claimed portions of the island are
inalienable and cannot be the subject of judicial confir-
mation of imperfect title. It is only the executive depart-
ment, not the courts, which has authority to reclassify
lands of the public domain into alienable and disposable

lands. There is a need for a positive government act in
order to release the lots for disposition. xxx
The 1935 Constitution classified lands of the public domain

into agricultural, forest or timber. Meanwhile, the 1973
Constitution provided the following divisions: agricul-
tural, industrial or commercial, residential, resettlement,
mineral, timber or forest and grazing lands, and such other
classes as may be provided by law, giving the government
great leeway for classification. Then the 1987 Constitution
reverted to the 1935 Constitution classification with one
addition: national parks. Of these, only agricultural lands
may be alienated. Prior to Proclamation No. 1064 of May
22, 2006, Boracay Island had never been expressly and
administratively classified under any of these grand
divisions. Boracay was an unclassified land of the public
domain.
The Regalian Doctrine dictates that all lands of the public
domain belong to the State, that the State is the source of
any asserted right to ownership of land and charged with
the conservation of such patrimony. The doctrine has been
consistently adopted under the 1935, 1973, and 1987
Constitutions.
All lands not otherwise appearing to be clearly within

private ownership are presumed to belong to the
State. Thus, all lands that have not been acquired from the
government, either by purchase or by grant, belong to the
State as part of the inalienable public domain. Necessarily,
it is up to the State to determine if lands of the public
domain will be disposed of for private ownership. The
government, as the agent of the state, is possessed of the
plenary power as the persona in law to determine who
shall be the favored recipients of public lands, as well as
under what terms they may be granted such privilege, not
excluding the placing of obstacles in the way of their
exercise of what otherwise would be ordinary acts of
ownership. xxx
Since 1919, courts were no longer free to determine the

classification of lands from the facts of each case, except
those that have already became private lands. Act No.
2874, promulgated in 1919 and reproduced in Section 6 of
CA No. 141, gave the Executive Department, through the
President, the exclusive prerogative to classify or reclassify
public lands into alienable or disposable, mineral or forest.
Since then, courts no longer had the authority, whether
express or implied, to determine the classification of lands
of the public domain. xxx
Except for lands already covered by existing titles, Boracay was
an unclassified land of the public domain prior to Proclamation
No. 1064. Such unclassified lands are considered public forest
under PD No. 705. The DENR and the National Mapping
and Resource Information Authority certify that Boracay
Island is an unclassified land of the public domain.
PD No. 705 issued by President Marcos categorized all
unclassified lands of the public domain as public forest.
Section 3(a) of PD No. 705 defines a public forest as "a
mass of lands of the public domain which has not been the
subject of the present system of classification for the
determination of which lands are needed for forest
purpose and which are not." Applying PD No. 705, all
unclassified lands, including those in Boracay Island, are
ipso facto considered public forests. PD No. 705, however,
respects titles already existing prior to its effectivity.
The Court notes that the classification of Boracay as a forest
land under PD No. 705 may seem to be out of touch with
the present realities in the island. Boracay, no doubt, has
been partly stripped of its forest cover to pave the way for
commercial developments. As a premier tourist destina-
tion for local and foreign tourists, Boracay appears more of
a commercial island resort, rather than a forest land.
Nevertheless, that the occupants of Boracay have built

multi-million peso beach resorts on the island; that the
island has already been stripped of its forest cover; or that
the implementation of Proclamation No. 1064 will destroy

the island's tourism industry, do not negate its character as
public forest.
Forests, in the context of both the Public Land Act and the
Constitution classifying lands of the public domain into
"agricultural,forest or timber, mineral lands, and national
parks," do not necessarily refer to large tracts of wooded
land or expanses covered by dense growths of trees and
underbrushes. The discussion in Heirs of Amunategui v.
Directorof Forestry is particularly instructive:
A forested area classified as forest land of the
public domain does not lose such classification
simply because loggers or settlers may have
stripped it of its forest cover. Parcels of land
classified as forest land may actually be covered
with grass or planted to crops by kaingin
cultivators or other farmers. "Forest lands" do not
have to be on mountains or in out of the way
places. Swampy areas covered by mangrove trees,
nipa palms, and other trees growing in brackish or
sea water may also be classified as forest land. The
classification is descriptive of its legal nature or
status and does not have to be descriptive of what
the land actually looks like. Unless and until the
land classified as "forest" is released in an official
proclamation to that effect so that it may form part
of the disposable agricultural lands of the public
domain, the rules on confirmation of imperfect title
do not apply. (Emphasis supplied)
There is a big difference between "forest" as defined in a
dictionary and "forest or timber land" as a classification of
lands of the public domain as appearing in our statutes.
One is descriptive of what appears on the land while the
other is a legal status, a classification for legal purposes. At
any rate, the Court is tasked to determine the legal status
of Boracay Island, and not look into its physical layout.
Hence, even if its forest cover has been replaced by beach
resorts, restaurants and other commercial establishments,

it has not been automatically converted from public forest
to alienable agricultural land. xxx
The continued possession and considerable investment of

private claimants do not automatically give them a vested
right in Boracay. Nor do these give them a right to apply
for a title to the land they are presently occupying. This
Court is constitutionally bound to decide cases based on
the evidence presented and the laws applicable. As the
law and jurisprudence stand, private claimants are
ineligible to apply for a judicial confirmation of title over
their occupied portions in Boracay even with their
continued possession and considerable investment in the
island. xxx
The Court is aware that millions of pesos have been

invested for the development of Boracay Island, making it
a by-word in the local and international tourism industry.
The Court also notes that for a number of years, thousands
of people have called the island their home. While the
Court commiserates with private claimants' plight, We are
bound to apply the law strictly and judiciously. This is the
law and it should prevail. Ito ang batas at ito ang dapat
umiral.
All is not lost, however, for private claimants. While they
may not be eligible to apply for judicial confirmation of
imperfect title under Section 48(b) of CA No. 141, as
amended, this does not denote their automatic ouster from
the residential, commercial, and other areas they possess
now classified as agricultural. Neither will this mean the
loss of their substantial investments on their occupied
alienable lands. Lack of title does not necessarily mean
lack of right to possess.
For one thing, those with lawful possession may claim

good faith as builders of improvements. They can take
steps to preserve or protect their possession. For another,
they may look into other modes of applying for original
registration of title, such as by homestead or sales patent,

subject to the conditions imposed by law.
More realistically, Congress may enact a law to entitle

private claimants to acquire title to their occupied lots or to
exempt them from certain requirements under the present
land laws. There is one such bill now pending in the
House of Representatives. Whether that bill or a similar
bill will become a law is for Congress to decide.
In issuing Proclamation No. 1064, the government has
taken the step necessary to open up the island to private
ownership. This gesture may not be sufficient to appease
some sectors which view the classification of the island
partially into a forest reserve as absurd. That the island is
no longer overrun by trees, however, does not becloud the
vision to protect its remaining forest cover and to strike a
healthy balance between progress and ecology. Ecological
conservation is as important as economic progress.
To be sure, forest lands are fundamental to our nation's
survival. Their promotion and protection are not just fancy
rhetoric for politicians and activists. These are needs that
become more urgent as destruction of our environment
gets prevalent and difficult to control. As aptly observed
by Justice Conrado Sanchez in 1968 in Directorof Forestry v.
Munoz:
The view this Court takes of the cases at bar is but

in adherence to public policy that should be
followed with respect to forest lands. Many have
written much, and many more have spoken, and
quite often, about the pressing need for forest
preservation, conservation, protection, develop-
ment and reforestation. Not without justification.
For, forests constitute a vital segment of any
country's natural resources. It is of common
knowledge by now that absence of the necessary
green cover on our lands produces a number of
adverse or ill effects of serious proportions.
Without the trees, watersheds dry up; rivers and

lakes which they supply are emptied of their
contents. The fish disappear. Denuded areas
become dust bowls. As waterfalls cease to
function, so will hydroelectric plants. With the
rains, the fertile topsoil is washed away; geological
erosion results. With erosion come the dreaded
floods that wreak havoc and destruction to
property-crops, livestock, houses, and highways
-not to mention precious human lives. Indeed,
the foregoing observations should be written
down in a lumberman's decalogue.
xxx
4.2.2. Land Use in Forest Land
Forest lands, being part of the public domain, are subject to
the rules of government on what can and cannot be done on
the land and to all the natural resources therein. It is dear
from the Boracay case above that "forest lands" and "forests"
are different. The general applicable law is The Revised
Forestry Code.
Revised Forestry Code
Presidential Decree No. 705, as amended
Section 15. Topography.-No land of the public domain
eighteen percent (18%) in slope or over shall be classified
as alienable and disposable, nor any forest land fifty
percent (50%) in slope or over, as grazing land.
Lands eighteen percent (18%) in slope or over which have
already been declared as alienable and disposable shall be
reverted to the classification of forest lands by the
Department Head, to form part of the forest reserves,
unless they are already covered by existing titles approved
public land application, or actually occupied openly,
continuously, adversely and publicly for a period of not
less than thirty (30) years as of the effectivity of this Code,
where the occupant is qualified for a free patent under the
Public Land Act: Provided, That said lands, which are not
yet part of a well-established communities, shall be kept in
a vegetative condition sufficient to prevent erosion and
adverse effects on the lowlands and streams: Provided,
further, That when public interest so requires, steps shall
be taken to expropriate, cancel defective titles, reject public
land application, or eject occupants thereof.
Section 16. Areas Needed for Forest Purposes.-The following

lands, even if they are below eighteen percent (18%) in
slope, are needed for forest purposes, and may not,
therefore, be classified as alienable and disposable land, to
wit:
1. Areas less than 250 hectares which are far
from, or are not contiguous with any certified
alienable and disposable land;
2. Isolated patches of forest of at least five (5)
hectares with rocky terrain, or which protect a
spring for communal use;
3. Areas which have already been reforested;
4. Areas within forest concessions which are
timbered or have good residual stocking to
support an existing, or approved to be
established, wood processing plant;
5. Ridge tops and plateaus regardless of size
found within, or surrounded wholly or partly
by, forest lands where headwaters emanate;
6. Appropriately located road-rights-of-way;
7. Twenty-meter strips of land along the edge of
the normal high waterline of rivers and
streams with channels of at least five (5)
meters wide;
8. Strips of mangrove or swamplands at least
twenty (20) meters wide, along shorelines
facing oceans, lakes, and other bodies of water,
and strips of land at least twenty (20) meters
wide facing lakes;
218 1 PHILIPPINE LAWAND ECOLOGY
9. Areas needed for other purposes, such as

national parks, national historical sites, game
refuges and wildlife sanctuaries, forest station
sites, and others of public interest; and
10. Areas previously proclaimed by the President
as forest reserves, national parks, game refuge,
bird sanctuaries, national shrines, national
historic sites:
Provided, That in case an area falling under any of the

foregoing categories shall have been titled in favor of any
person, steps shall be taken, if public interest so requires, to
have said title canceled or amended, or the titled area
expropriated.
xxx
Section 19. Multiple Use. -The numerous beneficial uses of

the timber, land, soil, water, wildlife, grass and recreation
or aesthetic value of forest lands and grazing lands shall be
evaluated and weighted before allowing their utilization,
exploitation, occupation or possession thereof, or the
conduct of any activity therein. Only the utilization,
exploitation, occupation or possession of any forest lands
and grazing lands, or any activity therein, involving one or
more of its resources, which will produce the optimum
benefits to the development and progress of the country,
and the public welfare, without impairment or with the
least injury to its resources, shall be allowed.
All forest reservations may be open to development or

uses not inconsistent with the principal objectives of the
reservation; Provided, That critical watersheds, national
parks and established experimental forests shall not be
subject to commercial logging or grazing operations, and
game refuges, bird sanctuaries, marine and seashore parks
shall not be subject to hunting or fishing and other
activities of commercial nature. [As amended by PD No.
1559]
NATONAL LAWS AND POLICIES I 219
Section 20. License Agreement, License, Lease or Permit.- No

person may utilize, exploit, occupy, possess or conduct any
activity within any forest and grazing land, or establish,
install, add and operate any wood or forest products
processing plant, unless he had been authorized to do
under a license agreement, license, lease or permit:
Provided, That when the national interest so requires, the
President may amend, modify, replace, or rescind any
contract, concession, permit, license, or any other form of
privilege granted herein: Provided, further, That upon the
recommendation of the appropriate government agency,
the President may, pending the conduct of appropriate
hearing, order the summary suspension of any such
contract, concession, license, permit, lease or privilege
granted under this decree for violation of any of the
conditions therein such as those pertaining but not limited
to reforestation, pollution, environment protection, export
limitation or such condition as are prescribed by the
Department of Natural Resources in daily issued
regulations. [As amended by P.D. No. 15591
xxx
Section 52. Census of Kaingineros, Squatters, Cultural

Minorities and Other Occupants and Residents in Forest
Lands - Henceforth, no person shall enter into forest lands
and cultivate the same without lease or permit.
A complete census of kaingineros, squatters, cultural

minorities and other occupants and residents in forest
lands with or without authority or permits from the
government, showing the extent of their respective
occupation and resulting damage, or impairment of forest
resources, shall be conducted.
The Bureau may call upon other agencies of the

government and holders of license agreement, license,
lease and permits over forest lands to participate in the
census.
Section 53. Criminal Prosecution.-Kaingineros, squatters,

cultural minorities and other occupants who entered into
forest lands and grazing lands before May 19, 1975,
without permit or authority, shall not be prosecuted:
Provided, That they do not increase their clearings:
Provided, further, That they undertake, within two (2)
months from notice thereof, the activities to be imposed
upon them by the Bureau in accordance with management
plan calculated to conserve and protect forest resources in
the area: Provided, finally, That kaingineros, squatters,
cultural minorities and other occupants shall whenever the
best land use of the area so demands as determined by the
Director, be ejected and relocated to the nearest accessible
government resettlement area. [As amended by PD No.
1559]
xxx
Section 78. Cutting, Gathering and/or Collecting Timber, or

Other Forest Products Without License.-Any person who
shall cut, gather, collect, remove timber or other forest
products from any forestland, or timber from alienable or
disposable public land, or from private land, without any
authority, or possess timber or other forest products
without the legal documents as required under existing
forest laws and regulations, shall be punished with the
penalties imposed under Articles 309 and 310 of the
Revised Penal Code: Provided, That in the case of
partnership, associations, or corporations, the officers who
ordered the cutting, gathering, collection or possession
shall be liable, and if such officers are aliens, they shall, in
addition to the penalty, be deported without further
proceedings on the part of the Commission on
Immigration and Deportation.
The Court shall further order the confiscation in favor of

the government of the timber or any forest products cut,
gathered, collected, removed, or possessed, as well as the
machinery, equipment, implements and tools illegally used
in the area where the timber or forest products are found.
[As amended by PD No. 1559, and by EO No. 277, prom.

July 25,1987,83 OG No. 31, Aug. 3, 1987]
Section 78-A. Administrative Authority of the Department

Head or His Duly Authorized Representative to Order
Confiscation.- In all cases of violations of this Code or other
forest laws, rules and regulations, the Department Head or
his duly authorized representative, may order the
confiscation of any forest products illegally cut, gathered,
removed, or possessed or abandoned, and all conveyances
used either by land, water or air in the commission of the
offense and to dispose of the same in accordance with
pertinent laws, regulations or policies on the matter. [As
added by E.O. No. 277]
Section 79. Unlawful Occupation or Destruction of Forest
Lands and Grazing Lands. -Any person who enters and
occupies or possesses, or makes kaingin for his own
private use or for others, any forest land or grazing land
without authority under a license agreement, lease, license
or permit, or in any manner destroys such forest land or
grazing land or part thereof, or causes any damage to the
timber stand and other products and forest growth found
therein, or who assists, aids or abets any other person to do
so, or sets a fire, or negligently permits a fire to be set in
any forest land or grazing land, or refuses to vacate the
area when ordered to do so, pursuant to the provisions of
Section 53 hereof shall, upon conviction, be fined in an
amount of not less than five hundred pesos (P500.00), nor
more than twenty thousand pesos (P20,000.00) and
imprisoned for not less than six (6) months nor more than
two (2) years for each such offense, and be liable to the
payment of ten (10) times to the rental fees and other
charges which would have accrued had the occupation and
use of the land been authorized under a license agreement,
lease, license or permit: Provided, That in the case of an
offender found guilty of making kaingin, the penalty shall
be imprisonment for not less than two (2) nor more than
four (4) years and a fine equal to eight (8) times the regular
forest charges due on the forest products destroyed,
without prejudice to the payment of the full cost of
production of the occupied area as determined by the
Bureau: Provided, further, That the maximum of the
penalty prescribed herein shall be imposed upon the
offender who repeats the same offense and double the
maximum of the penalty upon the offender who commits
the same offense for the third time.
In all cases, the Court shall further order the eviction of the
offender from the land the forfeiture to the government of
all improvements made and all vehicles, domestic animals
and equipment of any kind used in the commission of the
offense. If not suitable for use by the Bureau, said vehicles,
domestic animals, equipment and improvements shall be
sold at public auction, the proceeds of which shall accrue
to the Development Fund of the Bureau. xxx
Section 85. Tax Declarationon Real Property.-Imprisonment

for a period of not less than two (2) nor more than four (4)
years and perpetual disqualification from holding an
elective or appointive office, shall be imposed upon any
public officer or employee who shall issue a tax declaration
on real property without a certification from the Director of
Forest Development and the Director of Lands or their
duly designated representatives that the area declared for
taxation is alienable and disposable lands, unless the
property is titled or has been occupied and possessed by
members of the national cultural minorities prior to July 4,
1955.
Question: In the situationer, does it matter that the charcoal

and lumber came from trees that the farmers planted
themselves, even if these were planted on forest land? (Note:
Gmelina is not naturally occurring in the country, one can
assume somebody planted it). Cutting of any trees in public
land requires a permit, even if the trees were in fact planted
and not naturally growing.
In a case, the Court ruled that even cutting of trees in private

lands, including trees that have been planted, also require a
permit.
People of the Philippines vs. Alfonso Dator and Benito Genol,
accused (Acquitted), Pastor Telen, accused-appellant.
G.R. No. 136142, October 24, 2000
DE LEON, JR., I.:
xxx
It appears that on October 29, 1993, Police Station

Commander Alejandro Rojas of Maasin, Southern Leyte,
and SPOl Necitas Bacala, were on board a police patrol
vehicle heading towards Barangay San Rafael, Maasin,
Southern Leyte. Upon reaching Barangay Laboon of the
same municipality, they noticed a Isuzu cargo truck loaded
with pieces of lumber bound toward the town proper of
Maasin. Suspicious that the cargo was illegally cut pieces
of lumber, Police Station Commander Rojas maneuvered
their police vehicle and gave chase.
Upon catching up with the Isuzu cargo truck in Barangay

Soro-soro, Maasin, Southern Leyte, they ordered the
driver, accused Benito Genol, to pull over. Benito Genol
was left alone in the truck after his companions hurriedly
left. When asked if he had the required documents for the
proper transport of the pieces of lumber, Genol answered
in the negative. Genol informed the police authorities that
the pieces of lumber were owned by herein appellant,
Pastor Telen, while the Isuzu cargo truck bearing Plate No.
HAF 628 was registered in the name of Southern Leyte
Farmers Agro-Industrial Cooperative, Inc. (SLEFAICO)
which is a local cooperative. Consequently, Police Officers
Rojas and Bacala directed Benito Genol to proceed to the
Maasin Police Station, Maasin, Southern Leyte for further
investigation.
xxx
The defense denied any liability for the crime charged in

the Information. Pastor Telen, a utility worker at the
Integrated Provincial Health Office, Southern Leyte for
nineteen (19) years, testified that he needed lumber to be
used in renovating the house of his grandparents in
Barangay Abgao, Maasin, Southern Leyte where he
maintained residence. Knowing that it was prohibited by
law to cut trees without appropriate permit from the
(DENR), Telen sought the assistance of a certain Lando
dela Pena who was an employee at the CENRO, Maasin,
Southern Leyte. Dela Pena accompanied Telen to the office
of a certain Boy Leonor, who was the Officer in Charge of
CENRO in Maasin, Southern Leyte. Leonor did not
approve of the plan of Telen to cut teak or hard lumber
from his (Telen) mother's track of land in Tabunan, San
Jose, Maasin, Southern Leyte. However, Leonor allegedly
allowed Telen to cut the aging Dita trees only. According
to Telen, Leonor assured him that a written permit was not
anymore necessary before he could cut the Dita trees,
which are considered soft lumber, from the private land of
his mother, provided the same would be used exclusively
for the renovation of his house and that he shall plant trees
as replacement thereof, which he did by planting Gemelina
seedlings.
xxx
Upon arrival in Barangay Soro-Soro, Telen was accosted by

Police Station Commander Alejandro Rojas who
demanded from him DENR permit for the sawn lumber.
After confirming ownership of the sawn lumber, Telen
explained to Rojas that he had already secured verbal
permission from Boy Leonor to cut Dita trees, which are
considered soft lumber, to be used in the renovation of his
house and that he had already replaced the sawn Dita trees
with Gemelina seedlings, but to no avail. Rojas ordered
that the pieces of lumber and the Isuzu cargo truck be
impounded at the municipal building of Maasin, Southern
Leyte for failure of Telen to produce the required permit

from the DENR.
Pastor Telen appeared before Bert Pesidas, CENRO
hearing officer, in Maasin, Southern Leyte for investigation
in connection with the confiscated pieces of lumber. Telen
had tried to contact Officer-in-Charge Boy Leonor of the
CENRO Maasin, Southern Leyte after the confiscation of
the sawn lumber on October 29, 1993 and even during the
investigation conducted by the CENRO hearing officer for
three (3) times but to no avail, for the reason that Boy
Leonor was assigned at a reforestation site in Danao, Cebu
province.
xxx
After analyzing the evidence, the trial court rendered a

decision, the dispositive portion of which reads:
WHEREFORE, judgment is rendered as follows:
1. CONVICTING the accused PASTOR TELEN

beyond reasonable doubt of the offense charged
and there being no modifying circumstances, and
with the Indeterminate Sentence Law being
inapplicable, the herein accused is hereby
sentenced to suffer the indivisible penalty of
RECLUSION PERPETUA, with the accessory
penalties provided by law, which is two (2)
degrees higher than PRISION MAYOR maximum,
the authorized penalty similar to Qualified Theft,
and to pay the costs. His bail for his provisional
liberty is hereby cancelled and he shall be
committed to the New Bilibid Prisons,
Muntinlupa, Metro Manila thru the Abuyog
Regional Prisons, Abuyog, Leyte via the Provincial
Warden, Maasin, Southern Leyte;
xxx
In his appeal Pastor Telen interpose the following

assignments of error:
THE LOWER COURT ERRED IN FINDING THE

ACCUSED-APPELLANT GUILTY BEYOND REASON-
ABLE DOUBT FOR VIOLATION OF SEC. 68, P. D. 705, AS
AMENDED, BEING CONTRARY TO LAW AND THE
EVIDENCE ON RECORD AND FOR BEING NOT IN
CONFORMITY WITH DENR ADMINISTRATIVE ORDER
NO. 79, SERIES OF 1990.
xxx
The appeal is not impressed with merit.
It is not disputed that appellant Pastor Telen is the owner

of the fifty-one (51) pieces of assorted Antipolo and Dita
lumber with a total volume of 1,560.16 board feet. He
alleged that the pieces of lumber were cut from the track of
land belonging to his mother in San Jose, Maasin, Southern
Leyte which he intended to use in the renovation of his
house in Barangay Abgao of the same municipality. After
having been confiscated by the police, while in transit, in
Barangay Soro-soro, appellant Telen failed to produce
before the authorities the required legal documents from
the DENR pertaining to the said pieces of lumber.
The fact of possession by the appellant of the subject fifty-

one (51) pieces of assorted Antipolo and Dita lumber, as
well as his subsequent failure to produce the legal
documents as required under existing forest laws and
regulations constitute criminal liability for violation of
Presidential Decree No. 705, otherwise known as the
Revised Forestry Code. Section 68 of the code provides:
Section 68. Cutting, Gathering and/or Collecting Timber or

Other Forest Products Wthout License.-Any person who
products from any forest land, or timber from alienable or

Revised Penal Code: Provided, that in the case of
partnerships, associations, or corporations, the officers who

Appellant Telen contends that he secured verbal

permission from Boy Leonor, Officer-in-Charge of the
DENR-CENRO in Maasin, Southern Leyte before cutting
the lumber, and that the latter purportedly assured him
that written permit was not anymore necessary before
cutting soft lumber, such as the Antipolo and Dita trees in
this case, from a private track of land, to be used in
renovating appellant's house, provided that he would
plant trees as replacements thereof, which he already did.
It must be underscored that the appellant stands charged
with the crime of violation of Section 68 of Presidential
Decree No. 705, a special statutory law, and which crime is
considered mala prohibita. In the prosecution for crimes
that are considered mala prohibita, the only inquiry is
whether or not the law has been violated. The motive or
intention underlying the act of the appellant is immaterial
for the reason that his mere possession of the confiscated
pieces of lumber without the legal documents as required
under existing forest laws and regulations gave rise to his
criminal liability.
In any case, the mere allegation of the appellant regarding

the verbal permission given by Boy Leonor, Officer in
Charge of DENR-CENRO, Maasin, Southern Leyte, is not
sufficient to overturn the established fact that he had no
legal documents to support valid possession of the
confiscated pieces of lumber. It does not appear from the
record of this case that appellant exerted any effort during
the trial to avail of the testimony of Boy Leonor to
corroborate his allegation. Absent such corroborative
evidence, the trial court did not commit an error in
disregarding the bare testimony of the appellant on this
point which is, at best, self-serving.
The appellant cannot validly take refuge under the

pertinent provision of DENR Administrative Order No. 79,
Series of 1990 which prescribes rules on the deregulation of
the harvesting, transporting and sale of firewood,
pulpwood or timber planted in private lands. Appellant
submits that under the said DENR Administrative Order
No. 79, no permit is required in the cutting of planted trees
within titled lands except Benguet pine and premium
species listed under DENR Administrative Order No. 78,
Series of 1987, namely: narra, molave, dao, kamagong, ipil,
acacia, akle, apanit, banuyo, batikuling, betis, bolong-eta,
kalantas, lanete, lumbayao, sangilo, supa, teak, tindalo and
manggis.
Concededly, the varieties of lumber for which the

appellant is being held liable for illegal possession do not
belong to the premium species enumerated under DENR
Administrative Order No. 78, Series of 1987. However,
under the same DENR administrative order, a certification
from the CENRO concerned to the effect that the forest
products came from a titled land or tax declared alienable
and disposable land must still be secured to accompany
the shipment. This the appellant failed to do, thus, he is
criminally liable under Section 68 of Presidential Decree
No. 705 necessitating prior acquisition of permit and "legal
regulations." The pertinent portion of DENR Administra-
tive Order No. 79, Series of 1990, is quoted hereunder, to

wit:
In line with the National Reforestation Program

and in order to promote the planting of trees by
owners of private lands and give incentives to the
tree farmers, Ministry Administrative Order No. 4
dated January 19, 1987 which lifted the restriction
in the harvesting, transporting and sale of
firewood, pulpwood or timber produced from Ipil-
Ipil (leucaenia spp) and Falcate (Albizziafalcataria)is
hereby amended to include all other tree species
planted in private lands except BENGUET PINE
and premium hardwood species. Henceforth, no
permit is required in the cutting of planted trees
within the titled lands or tax declared A and D
lands with corresponding application for patent or
acquired through court proceedings, except
BENGUET PINE and premium species listed
under DENR Administrative Order No 78, Series
of 1987, provided, that a certification of the CENRO
concerned to the effect that the forest products came
from a titled land or tax declared alienable and
disposableland is issued accompanying the shipment.
The Chainsaw Act regulates the use if chainsaws in cutting

and processing wood products:
The Chainsaw Act of 2002

Republic Act No. 9175
Sec. 5. Persons Authorized to Possess and Use a Chain Saw. -
The Department is hereby authorized to issue permits to
possess and/or use a chain saw for the felling and/or
cutting of trees, timber and other forest or agro-forest
products to any applicant who:
(a) has a subsisting timber license agreement,
production sharing agreement, or similar
agreements, or a private land timber permit;
(b) is an orchard and fruit tree farmer;

(c) is an industrial tree farmer;
(d) is a licensed wood processor and the chain saw
shall be used for the cutting of timber that has
been legally sold to said applicant; or
(e) shall use the chain saw for a legal purpose.
Agencies of the government that use chain saws in some

aspects of their functions must likewise secure the
necessary permit from the Department before operating
the same.
Sec. 6. Registrationof Chain Saws. -Within a period of three

(3) months from the effectivity hereof, all persons who own
or are otherwise in possession of chain saws must register
the same with the Department, through any of its
Community Environment and Natural Resources Office,
which shall issue the corresponding registration certificate
or permit if it finds such persons to be qualified hereunder.
Every permit to possess and/or use a chain saw for

legitimate purpose shall be valid for two (2) years upon
issuance: Provided, That permits to possess and use
chainsaw issued to non-commercial orchard and fruit tree
farmers shall be valid for a period of five (5) years upon
issuance. For this purpose, the Department shall be
allowed to collect reasonable registration fees for the
effective implementation of this Act.
Sec. 7. Penal Provisions. -

(1) Selling, Purchasing, Re-selling Transferring, Distributing
or Possessing a Chain Saw Without a Proper Permit.-Any
person who sells, purchases, transfers the ownership,
distributes, or otherwise disposes or possesses a chain saw
without first securing the necessary permit from the
Department shall be punished with imprisonment of four
(4) years, two (2) months and one (1) day to six (6) years or
a fine of not less than Fifteen thousand pesos (P15,000.00)
but not more than Thirty thousand pesos (P30,000.00) or
both at the discretion of the court, and the chain saw/s
confiscated in favor of the government.
xxx
(4) Actual Unlawful Use of Chain Saw. - Any person who is
found to be in possession of a chain saw and uses the same
to cut trees and timber in forest land or elsewhere except as
authorized by the Department shall be penalized with
imprisonment of six (6) years and one (1) day to eight (8)
years or a fine of not less than Thirty thousand pesos
(P30,000.00) but not more than Fifty thousand pesos
(P50,000.00) or both at the discretion of the court without
prejudice to being prosecuted for a separate offense that
may have been simultaneously committed. The chain saw
unlawfully used shall be likewise confiscated in favor of
the government.
If the violation under this Sec. is committed by or through
the command or order of another person, partnership or
corporation, the penalties herein provided shall likewise be
imposed on such other person, or the responsible officer(s)
in such partnership or corporation.
If the offender is a public official or employee, in addition
to the above penalties, he shall be removed from office and
perpetually disqualified from holding any public office.
The chain saws confiscated under this Sec. shall be sold at
public auction to qualified buyers and the proceeds thereof
shall go to the Department.
xxx
The penal provisions of the Forestry Code are very clear, as
illustrated by the following cases of Mustang Lumber vs.
Court of Appeals and Paat vs. Court of Appeals.
Paat vs. Court of Appeals

G.R. No. 111107, January 10,1997
Torres, Jr., J.:
xxx
The controversy on hand had its incipiency on May 19,

1989 when the truck of private respondent Victoria de
Guzman while on its way to Bulacan from San Jose,
Baggao, Cagayan, was seized by the Department of
Environment and Natural Resources (DENR, for brevity)
personnel in Aritao, Nueva Vizcaya because the driver
could not produce the required documents for the forest
products found concealed in the truck. Petitioner Jovito
Layugan, the Community Environment and Natural
Resources Officer (CENRO) in Aritao, Cagayan, issued on
May 23, 1989 an order of confiscation of the truck and gave
the owner thereof fifteen (15) days within which to submit
an explanation why the truck should not be
forfeited. Private respondents, however, failed to submit
the required explanation. On June 22, 1989, Regional
Executive Director Rogelio Baggayan of DENR
sustained petitioner Layugan's action of confiscation
and ordered the forfeiture of the truck invoking Section
68-A of Presidential Decree No. 705 as amended by
Executive Order No. 277. Private respondents filed a letter
of reconsideration dated June 28, 1989 of the June 22, 1989
order of Executive Director Baggayan, which was,
however, denied in a subsequent order of July 12, 1989.
Subsequently, the case was brought by the petitioners to
the Secretary of DENR pursuant to private respondents'
statement in their letter dated June 28, 1989 that in case
their letter for reconsideration would be denied then "this
letter should be considered as an appeal to the Secretary."
Pending resolution however of the appeal, a suit for
replevin, docketed as Civil Case 4031, was filed by the
private respondents against petitioner Layugan and
Executive Director Baggayan with the Regional Trial
Court, Branch 2 of Cagayan, which issued a writ ordering
the return of the truck to private respondents. Petitioner

Layugan and Executive Director Baggayan filed a motion
to dismiss with the trial court contending, inter alia, that
private respondents had no cause of action for their failure
to exhaust administrative remedies. The trial court denied
the motion to dismiss in an order dated December 28,1989.
Their motion for reconsideration having been likewise
denied, a petition for certiorariwas filed by the petitioners
with the respondent Court of Appeals which sustained the
trial court's order ruling that the question involved is
purely a legal question. Hence, this present petition, with
prayer for temporary restraining order and/or preliminary
injunction, seeking to reverse the decision of the
respondent Court of Appeals was filed by the petitioners
on September 9, 1993. By virtue of the Resolution dated
September 27, 1993, the prayer for the issuance of
temporary restraining order of petitioners was granted by
this Court.
Invoking the doctrine of exhaustion of administrative

remedies, petitioners aver that the trial court could not
legally entertain the suit for replevin because the truck was
under administrative seizure proceedings pursuant to
Section 68-A of P.D. 705, as amended by E.O. 277. Private
respondents, on the other hand, would seek to avoid the
operation of this principle asserting that the instant case
falls within the exception of the doctrine upon the
justification that (1) due process was violated because they
were not given the chance to be heard, and (2) the seizure
and forfeiture was unlawful on the grounds: (a) that the
Secretary of DENR and his representatives have no
authority to confiscate and forfeit conveyances utilized in
transporting illegal forest products, and (b) that the truck
as admitted by petitioners was not used in the commission
of the crime.
Upon a thorough and delicate scrutiny of the records and

relevant jurisprudence on the matter, we are of the opinion
that the plea of petitioners for reversal is in order.
This Court in a long line of cases has consistently held that

before a party is allowed to seek the intervention of the
court, it is a pre-condition that he should have availed of
all the means of administrative processes afforded him.
Hence, if a remedy within the administrative machinery
can still be resorted to by giving the administrative officer
concerned every opportunity to decide on a matter that
comes within his jurisdiction then such remedy should be
exhausted first before court's judicial power can be sought,
The premature invocation of court's intervention is fatal to
one's cause of action. Accordingly, absent any finding of
waiver or estoppel the case is susceptible of dismissal for
lack of cause of action.
xxx
There is no question that the controversy was pending

before the Secretary of DENR when it was forwarded to
him following the denial by the petitioners of the motion
for reconsideration of private respondents through the
order of July 12, 1989. In their letter of reconsideration
dated June 28, 1989, private respondents clearly recognize
the presence of an administrative forum to which they seek
to avail, as they did avail, in the resolution of their case.
The letter reads, thus:
xxx
If this motion for reconsiderationdoes not merit your

favorable action, then this letter should be considered as
an appeal to the Secretary.
It was easy to perceive then that the private respondents

looked up to the Secretary for the review and disposition
of their case. By appealing to him, they acknowledged the
existence of an adequate and plain remedy still available
and open to them in the ordinary course of the law. Thus,
they cannot now, without violating the principle of
exhaustion of administrative remedies, seek court's
intervention by filing an action for replevin for the grant of
their relief during the pendency of an administrative

proceeding.
xxx
It is important to point out that the enforcement of forestry

laws, rules and regulations and the protection,
development and management of forest lands fall within
the primary and special responsibilities of the Department
of Environment and Natural Resources. By the very nature
of its function, the DENR should be given a free hand
unperturbed by judicial intrusion to determine a
controversy which is well within its jurisdiction. The
assumption by the trial court, therefore, of the replevin suit
filed by private respondents constitutes an unjustified
encroachment into the domain of the administrative
agency's prerogative. The doctrine of primary jurisdiction
does not warrant a court to arrogate unto itself the
authority to resolve a controversy the jurisdiction over
which is initially lodged with an administrative body of
special competence.
xxx
Second, private respondents imputed the patent illegality

of seizure and forfeiture of the truck because the
administrative officers of the DENR allegedly have no
power to perform these acts under the law. They insisted
that only the court is authorized to confiscate and forfeit
conveyances used in transporting illegal forest products as
can be gleaned from the second paragraph of Section 68 of
P.D. 705, as amended by E.O. 277. The pertinent provision
reads as follows:
Sec. 68....
xxx xxx xxx
The court shall further order the confiscation in

favor of the government of the timber or any forest
products cut, gathered, collected, removed, or
possessed, as well as the machinery, equipments,

implements and tools illegaly [sic] used in the area
where the timber or forest products are found.
(Emphasis ours)
A reading, however, of the law persuades us not to go

along with private respondents' thinking not only because
the aforequoted provision apparently does not mention
nor include "conveyances" that can be the subject of
confiscation by the courts, but to a large extent, due to the
fact that private respondents' interpretation of the subject
provision unduly restricts the clear intention of the law
and inevitably reduces the other provision of Section 68-A,
which is quoted herein below:
Sec. 68-A. Administrative Authority of the
Department or His Duly Authorized Repre-
sentative To Order Confiscation. In all cases of
violation of this Code or other forest laws, rules
and regulations, the Department Head or his duly
authorizedrepresentative,may order the confiscation of
any forest products illegally cut, gathered,
removed, or possessed or abandoned, and all
conveyances used either by land, water or air in the
commission of the offense and to dispose of the same
in accordance with pertinent laws, regulations and
policies on the matter. (Emphasis ours)
It is, thus, clear from the foregoing provision that the

Secretary and his duly authorized representatives are
given the authority to confiscate and forfeit any
conveyances utilized in violating the Code or other forest
laws, rules and regulations. The phrase "to dispose of the
same" is broad enough to cover the act of forfeiting
conveyances in favor of the government. The only
limitation is that it should be made "in accordance with
pertinent laws, regulations or policies on the matter." In
the construction of statutes, it must be read in such a way
as to give effect to the purpose projected in the statute.
Statutes should be construed in the light of the object to be
achieved and the evil or mischief to be suppressed, and

they should be given such construction as will advance the
object, suppress the mischief, and secure the benefits
intended.
In this wise, the observation of the Solicitor General is

significant, thus:
"But precisely because of the need to make forestry

laws 'more responsive to present situations and
realities' and in view of the 'urgency to conserve
the remaining resources of the country,' that the
government opted to add Section 68-A. This
amendatory provision is an administrative
remedy totally separate and distinct from criminal
proceedings. More than anything else, it is
intended to supplant the inadequacies that
characterize enforcement of forestry laws through
criminal actions. The preamble of EO 277-the law
that added Section 68-A to PD 705-is most
revealing:
'WHEREAS, there is an urgency to

conserve the remaining forest resources of
the country for the benefit and welfare of
the present and future generations of
Filipinos;
WHEREAS, our forest resources may be

effectively conserved and protected
through the vigilant enforcement and
implementation of our forestry laws, rules
and regulations;
WHEREAS, the implementation of our

forestry laws suffers from technical diffi-
culties, due to certain inadequacies in the
penal provisions of the Revised Forestry
Code of the Philippines and
WHEREAS, to overcome this difficulties,

there is a need to penalize certain acts
more responsive to present situations and
realities;'
It is interesting to note that Section 68-A is a new
provision authorizing the DENR to confiscate, not
only 'conveyances,' but forest products as well. On
the other hand, confiscation of forest products by
the 'court' in a criminal action has long been
provided for in Section 68. If as private
respondents insist, the power on confiscation
cannot be exercised except only through the court
under Section 68, then Section 68-A would have no
purpose at all. Simply put, Section 68-A would not
have provided any solution to the problem
perceived in EO 277, supra."
xxx
With the introduction of Executive Order No. 277
amending Section 68 of P.D. 705, the act of cutting,
gathering, collecting, removing, or possessing forest
products without authority constitutes a distinct offense
independent now from the crime of theft under Articles
309 and 310 of the Revised Penal Code, but the penalty to
be imposed is that provided for under Article 309 and 310
of the Revised Penal Code. This is clear from the language
of Executive Order No. 277 when it eliminated the phrase
"shall be guilty of qualified theft as defined and punished
under Articles 309 and 310 of the Revised Penal Code" and
inserted the words "shall be punished with the penalties
imposed under Article 309 and 310 of the Revised Penal
Code". When the statute is clear and explicit, there is
hardly room for any extended court ratiocination or
rationalization of the law.
From the foregoing disquisition, it is clear that a suit for

replevin cannot be sustained against the petitioners for the
subject truck taken and retained by them for adminis-
trative forfeiture proceedings in pursuant to Section 68-A

of the P.D. 705, as amended. Dismissal of the replevin suit
for lack of cause of action in view of the private
respondents' failure to exhaust administrative remedies
should have been the proper course of action by the lower
court instead of assuming jurisdiction over the case and
consequently issuing the writ ordering the return of the
truck. Exhaustion of the remedies in the administrative
forum, being a condition precedent prior to one's recourse
to the courts and more importantly, being an element of
private respondents' right of action, is too significant to be
waylaid by the lower court.
Petition Granted; Decision of the respondent Court of
Appeals and its Resolution are hereby SET ASIDE AND
REVERSED; the Restraining Order is hereby made
permanent.
Mustang Lumber vs. Court of Appeals
G.R. No. 104988, June 18,1996
Davide, Jr., J:
Petitioner, a domestic corporation with principal office at

Nos. 1350-1352 Juan Luna Street, Tondo, Manila, and with
a Lumberyard at Fortune Street, Fortune Village, Paseo de
Bias, Valenzuela, Metro Manila, was duly registered as a
lumber dealer with the Bureau of Forest Development
(BFD) under Certificate of Registration No. NRD-4-092590-
0469. Its permit as such was to expire on 25 September
1990.
Respondent Secretary Fulgencio S. Factoran, Jr., and
respondent Atty. Vincent A. Robles were, during all the
time material to these cases, the Secretary of the
(DENR) and the Chief of the Special Actions and
Investigation Division (SAID) of the DENR, respectively.
On 1 April 1990, acting on an information that a huge

stockpile of narra flitches, shorts, and slabs were seen
inside the lumberyard of the petitioner in Valenzuela,
Metro Manila, the SAID organized a team of foresters and
policemen and sent it to conduct surveillance at the said
lumberyard. In the course thereof, the team members saw
coming out from the lumberyard the petitioner's truck,
with Plate No. CCK-322, loaded with lauan and almaciga
lumber of assorted sizes and dimensions. Since the driver
could not produce the required invoices and transport
documents, the team seized the truck together with its
cargo and impounded them at the DENR compound at
Visayas Avenue, Quezon City. The team was not able to
gain entry into the premises because of the refusal of the
owner.
On 3 April 1990, the team was able to secure a search

warrant from Executive Judge Adriano R. Osorio of the
Regional Trial Court (RTC) of Valenzuela, Metro Manila.
By virtue thereof, the team seized on that date from the
petitioner's lumberyard four truckloads of narra shorts,
trimmings, and slabs; a negligible number of narra lumber;
and approximately 200,000 board feet of lumber and shorts
of various species including almaciga and supa.
On 4 April 1990, the team returned to the premises of the

petitioner's lumberyard in Valenzuela and placed under
administrative seizure the remaining stockpile of almaciga,
supa, and lauan lumber with a total volume of 311,000
board feet because the petitioner failed to produce upon
demand the corresponding certificate of lumber origin,
auxiliary invoices, tally sheets, and delivery receipts from
the source of the invoices covering the lumber to prove the
legitimacy of their source and origin.
Parenthetically, it may be stated that under an

administrative seizure the owner retains the physical
possession of the seized articles. Only an inventory of the
articles is taken and signed by the owner or his
representative. The owner is prohibited from disposing

them until further orders.
xxx
On 3 May 1990, Secretary Factoran issued another order

wherein, after reciting the events which took place on 1
April and 3 April 1990, he ordered "CONFISCATED in
favor of the government to be disposed of in accordance
with law" the approximately 311,000 board feet of lauan,
supa, and almaciga lumber, shorts, and sticks found inside
the petitioner's lumberyard.
xxx
On 17 September 1990, in response to reports that

violations of P.D. No. 705 (The Revised Forestry Code of
the Philippines), as amended, were committed and acting
upon instruction of Robles and under Special Order No.
897, series of 1990, a team of DENR agents went to the
business premises of the petitioner located at No. 1352 Juan
Luna Street, Tondo, Manila. The team caught the petitioner
operating as a lumber dealer although its lumber-dealer's
permit had already been suspended or 23 April 1990. Since
the gate of the petitioner's lumberyard was open, the team
went inside and saw an owner-type jeep with a trailer
loaded with lumber. Upon investigation, the team was
informed that the lumber loaded on the trailer was to be
delivered to the petitioner's customer. It also came upon
the sales invoice covering the transaction. The members of
the team then introduced themselves to the caretaker, one
Ms. Chua, who turned out to be the wife of the petitioner's
president and general manager, Mr. Ri Chuy Po, who was
then out of town. The team's photographer was able to
take photographs of the stockpiles of lumber including
newly cut ones, fresh dust around sawing or cutting
machineries and equipment, and the transport vehicles
loaded with lumber. The team thereupon effected a
constructive seizure of approximately 20,000 board feet of
lauan lumber in assorted sizes stockpiled in the premises
by issuing a receipt therefor.
Petitioner filed with the RTC of Manila a petition
forcertiorariand prohibition. The case (hereinafter,
the SECOND CIVIL CASE) was docketed as Civil Case No.
90-54610 and assigned to Branch 24 of the said court.
xxx
An information was filed on 5 June 1991 by the DOJ with
Branch 172 of the RTC of Valenzuela, charging Ri Chuy Po
with the violation of Section 58 of P.D. No. 705, as
amended, which was docketed as Criminal Case No. 324-
V-91 (hereinafter, the CRIMINAL CASE). The accusatory
portion of the information reads as follows:
That on or about the 3rd day of April 1990, or prior to or
subsequent thereto, within the premises and vicinity of
Mustang Lumber, Inc. in Fortune Village, Valenzuela,
Metro Manila, and within the jurisdiction of this Honor-
able Court, the above-named accused, did then and there
wilfully, feloniously and unlawfully have in his possession
truckloads of almaciga and lauan and approximately
200,000 bd. ft. of lumber and shorts of various species
including almaciga and supa, without the legal documents
as required under existing forest laws andregulations.
On 7 June 1991, Branch 35 of the RTC of Manila rendered
its decision in the FIRST CIVIL CASE, the dispositive
portion of which reads:
WHEREFORE, judgment in this case is rendered as
follows:
1. The Order of Respondent Secretary of the DENR, the
Honorable Fulgencio S. Factoran, Jr., dated 3 May 1990
ordering the confiscation in favor of the Government
the approximately 311,000 board feet of Lauan, supa,
end almaciga Lumber, shorts and sticks, found inside
and seized from the Lumberyard of the petitioner at
Fortune Drive, Fortune Village, Paseo de Blas,

Valenzuela, Metro Manila, on April 4, 1990 (Exhibit
10), is hereby set aside and vacated, and instead the
respondents are required to report and bring to the
Hon. Adriano Osorio, Executive Judge, Regional Trial
Court, NCR, Valenzuela, Metro Manila, the said
311,000 board feet of Lauan, supa and almaciga
Lumber, shorts and sticks, to be dealt with as directed
by Law;
2. The respondents are required to initiate and prosecute
the appropriate action before the proper court regard-
ing the Lauan and almaciga lumber of assorted sizes
and dimensions Loaded in petitioner's truck bearing
Plate No. CCK-322 which were seized on April 1,1990;
3. The Writ of Preliminary Injunction issued by the Court
on August 2, 1990 shall be renderedfunctus oficio upon
compliance by the respondents with paragraphs I and
2 of this judgment;.
4. Action on the prayer of the petitioner that the Lauan,
supa and almaciga lumber, shorts and sticks mention-
ed above in paragraphs I and 2 of this judgment be
returned to said petitioner is withheld in this case until
after the proper court has taken cognizance and
determined how those Lumber, shorts and sticks
should be disposed of; and
5. The petitioner is ordered to pay the costs.
SO ORDERED
xxx
The trial court, however, set aside Secretary Factoran's

order of 3 May 1990 ordering the confiscation of the seized
articles in favor of the Government for the reason that since
the articles were seized pursuant to the search warrant
issued by Executive Judge Osorio they should have been
returned to him in compliance with the directive in the
warrant.
In the CRIMINAL CASE, respondent Judge Teresita

Dizon-Capulong granted the motion to quash and
dismissed the case on the ground that "possession of
lumber without the legal documents required by forest
laws and regulations is not a crime.
Its motion for reconsideration having been denied in the

order of 18 October 1991, the People filed a petition
for certiorariwith this Court in G.R. No. 106424, wherein it
contends that the respondent Judge acted with grave abuse
of discretion in granting the motion to quash and in
dismissing the case.
The People filed a petition for certiorariwith this Court in

G.R. No. 106424, wherein it contends that the respondent
Judge acted with grave abuse of discretion in granting the
motion to quash and in dismissing the case.
The Court of Appeals rendered a decision in CA-G.R. SP

No. 25510 dismissing for lack of merit the petitioner's
appeal from the decision in the FIRST CIVIL CASE and
affirming the trial court's rulings on the issues raised. As to
the claim that the truck was not carrying contraband
articles since there is no law punishing the possession
of lumber, and that lumber is not timber whose possession
without the required legal documents is unlawful under
P.D. No. 705, as amended, the Court of Appeals held:
This undue emphasis on lumber or the commercial nature

of the forest product involved has always been foisted by
those who claim to be engaged in the legitimate business of
lumber dealership. But what is important to consider is
that when appellant was required to present the valid
documents showing its acquisition and lawful possession
of the lumber in question, it failed to present any despite
the period of extension granted to it.
The petitioner's motion to reconsider the said decision was

denied by the Court of Appeals in its resolution of 3 March
1992. Hence, the petitioner came to this Court by way of a
petition for review on certiorariin G.R. No. 104988, which

was filed on 2 May 1992
xxx
On 24 September 1992, Branch 24 of the RTC of Manila

handed down a decision in the SECOND CIVIL CASE
dismissing the petition for certiorariand prohibition
because (a) the petitioner did not exhaust administrative
remedies; (b) when the seizure was made on 17 September
1990 the petitioner could not lawfully sell lumber, as its
license was still under suspension; (c) the seizure was valid
under Section 68-A of P.D. No. 705, as amended; and (d)
the seizure was justified as a warrantless search and
seizure under Section 80 of P.D. No. 705, as amended.
The petitioner appealed from the decision to the Court of

Appeals, which docketed the appeal as CA-G.R. SP
No. 33778.
In its decision of 31 July 1995, the Court of Appeals

dismissed the petitioner's appeal in CA-G.R. SP No. 33778
for lack of merit and sustained the grounds relied upon by
the trial court in dismissing the SECOND CIVIL CASE.
Relying on the definition of "lumber" by Webster, viz.,
"timber or logs, especially after being prepared for the
market," and by the Random House Dictionary of the
English Language, viz., "wood, esp. when suitable or
adapted for various building purposes," the respondent
Court held that since wood is included in the definition
of firest product in Section 3 (q) of P.D. No. 705, as
amended, lumber is necessarily included in Section 68
under the termforest product.
G.R. No. 106424
xxx
Respondent Ri Chuy Po is charged with the violation of
Section 68 of P.D. No. 705, as amended by E.O. No. 277,
which provides:
Sec. 68. Cutting, Gathering and/or collecting Timber, or Other

Forest Products Without License. - Any person who shall cut,
gather, collect, remove timber or other forest products
from any forest land, or timber from alienable or

Punished then in this section are (1) the cutting, gathering,

collection, or removal of timber or other forest products from
the places therein mentioned without any authority; and
(b) possession of timber forest products without the legal
regulations.
Indeed, the word lumber does not appear in Section 68. But
conceding ex gratiathat this omission amounts to an
exclusion of lumber from the section's coverage, do the
facts averred in the information in the CRIMINAL CASE
validly charge a violation of the said section?
A cursory reading of the information readily leads us to an

infallible conclusion that lumber is not solely its subject
matter. It is evident therefrom that what are alleged to be in
the possession of the private respondent, without the

required legal documents, are trucldoads of
(1) almaciga and lauan; and

(2) approximately 200,000 bd. ft. of lumber and shorts of
various species including almaciga and supa.
The "almaciga and lauan" specifically mentioned in no. (1)

are not described as "lumber." They cannot refer to the
"lumber" in no. (2) because they are separated by the
words "approximately 200,000 bd. ft." with the conjunction
"and," and not with the preposition "of." They must then
be raw forest products or, more specifically, timbers under
Section 3(q) of P.D. No. 705, as amended, which reads:
Sec. 3. Definitions.-
xxx xxx xxx
(q) Forest product means timber, firewood, bark, tree top,

resin, gum, wood, oil, honey, beeswax, nipa, rattan, or
other forest plant, the associated water, fish game, scenic,
historical, recreational and geological resources in forest
lands.
It follows then that lumber is only one of the items covered

by the information. The public and the private respondents
obviously miscomprehended the averments in the
information. Accordingly, even if lumber is not included in
Section 68, the other items therein as noted above fall
within the ambit of the said section, and as to them, the
information validly charges an offense
xxx
The Revised Forestry Code contains no definition of

either timber or lumber. While the former is included inforest
products as defined in paragraph (q) of Section 3, the latter
is found in paragraph (aa) of the same section in the
definition of "Processing plant," which reads:
(aa) Processing plant is any mechanical set-up, machine or

combination of machine used for the processing of logs
and other forest raw materials into lumber, veneer,
plywood, wallbond, blockboard, paper board, pulp, paper
or other finished wood products.
This simply means that lumber is a processed log or

processed forest raw material. Clearly, the Code uses the
term lumber in its ordinary or common usage. In the 1993
copyright edition of Webster's Third New International
Dictionary, lumber is defined, inter alia, as "timber or logs
after being prepared for the market.132 Simply put, lumber
is a processed log or timber.
It is settled that in the absence of legislative intent to the

contrary, words and phrases used in a statute should be
given their plain, ordinary, and common usage
meaning. And insofar as possession of timber without the
required legal documents is concerned, Section 68 of P.D.
No. 705, as amended, makes no distinction between raw or
processed timber. Neither should we. Ubi lex non
distinguere debemus.
G.R. No. 104988
We find this petition to be without merit.
xxx
The seizure of such truck and its cargo was a valid exercise
of the power vested upon a forest officer or employee by
Section 80 of P.D. No. 705, as amended by P.D. No. 1775.
Then, too, as correctly held by the trial court and the Court
of Appeals in the FIRST CIVIL CASE, the search was
conducted on a moving vehicle. Such a search could be
lawfully conducted without a search warrant.
Search of a moving vehicle is one of the five doctrinally

accepted exceptions to the constitutional mandate that no
search or seizure shall be made except by virtue of a
warrant issued by a judge after personally determining the
existence of probable cause. The other exceptions are (3)

search as an incident to a lawful arrest, (2) seizure of
evidence in plain view, (3) customs searches, and (4)
consented warrantless search.
G.R. No. 123784
The Court of Appeals correctly dismissed the petitioner's

appeal from the judgment of the trial court in the SECOND
CIVIL CASE. The petitioner never disputed the fact that its
lumber-dealer's license or permit had been suspended by
Secretary Factoran on 23 April 1990. The suspension was
never lifted, and since the license had only a lifetime of up
to 25 September 1990, the petitioner has absolutely no right
to possess, sell, or otherwise dispose of lumber.
Accordingly, Secretary Factoran or his authorized repre-
sentative had the authority to seize the Lumber pursuant
to Section 68-A of P.D. No. 705, as amended, which
provides as follows:
Sec. 68-A Administrative Authority of the Department Head or

his Duly Authorized Representative to Order Confiscation.-In
all cases of violations of this Code or other forest laws,
rules and regulations, the Department Head or his duly
authorized representative may order the confiscation of
any forest products illegally cut, gathered, removed, or
possessed or abandoned....
xxx
WHEREFORE, judgment is hereby rendered
1. (a) GRANTING the petition in G.R. No. 106424; (b)

SETTING ASIDE and ANNULLING, for having been
rendered with grave abuse of discretion, the challenged
orders of 16 August 1991 and 18 October 1991 of
respondent Judge Teresita Dizon-Capulong, Branch 172,
Regional Trial Court of Valenzuela, Metro Manila, in
Criminal Case No. 324-V-91, entitled "People of the
Philippines vs. Ri Chuy Po;" (c) REINSTATING the
information in the said criminal case; and (d) DIRECTING
the respondent Judge or her successor to hear and decide

the case with purposeful dispatch; and
2. DENYING the petitions in G.R. No. 104988 and in G.

R. No. 123784 for utter failure of the petitioner to show that
the respondent Court of Appeals committed any reversible
error in the challenged decisions of 29 November 1991 in
CA-G.R. SP No. 25510 in the FIRST CIVIL CASE and of 31
July 1995 in CA-G.R. SP No. 33778 on the SECOND CIVIL
CASE.
Costs against the petitioner in each of these three cases.
SO ORDERED.
Merida vs. People of the Philippines

G.R. No. 158182, June 12,2008
Carpio, J.:
Petitioner was charged in the Regional Trial Court of

Romblon, Romblon, Branch 81 (trial court) with violation
of Section 68 of PD 705, as amended, for "cut[ting],
gather[ing], collect[ing] and remov[ing]" a lone narra tree
inside a private land in Mayod, Ipil, Magdiwang, Romblon
(Mayod Property) over which private complainant Oscar
M. Tansiongco (Tansiongco) claims ownership.
The prosecution evidence showed that on 23 December

1998, Tansiongco learned that petitioner cut a narra tree in
the Mayod Property. Tansiongco reported the matter to
Florencio Royo (Royo), the punong barangay of Ipil. On 24
December 1998, Royo summoned petitioner to a meeting
with Tansiongco. When confronted during the meeting
about the felled narra tree, petitioner admitted cutting the
tree but claimed that he did so with the permission of one
Vicar Calix (Calix) who, according to petitioner, bought the
Mayod Property from Tansiongco in October 1987 under a
pacto de retro sale. Petitioner showed to Royo Calix's
written authorization signed by Calix's wife.
NATIONAL LAWSAND POUClES I 251
On 11 January 1999, Tansiongco reported the tree-cutting

to the Department of Environment and Natural Resources
(DENR) forester Thelmo S. Hernandez (Hernandez) in
Sibuyan, Romblon. When Hernandez confronted petitioner
about the felled tree, petitioner reiterated his earlier claim
to Royo that he cut the tree with Calix's permission.
Hernandez ordered petitioner not to convert the felled tree
trunk into lumber.
On 26 January 1999, Tansiongco informed Hernandez that

petitioner had converted the narra trunk into lumber.
Hernandez, with other DENR employees and enforcement
officers, went to the Mayod Property and saw that the
narra tree had been cut into six smaller pieces of lumber.
Hernandez took custody of the lumber, deposited them for
safekeeping with Royo, and issued an apprehension
receipt to petitioner. A larger portion of the felled tree
remained at the Mayod Property.
Section 68, as amended, one of the 12 acts25 penalized

under PD 705, provides:
SECTION 68. Cutting, Gatheringand/or Collecting Timber, or

Other Forest Products Without License.-Any person who
products from any forest land, or timber from alienable or
The court shall further order the confiscation in favor of

gathered, collected, removed, or possessed as well as the
(Emphasis supplied)
Section 68, penalizes three categories of acts: (1) the

cutting, gathering, collecting, or removing of timber or
other forest products from any forest land without any
authority; (2) the cutting, gathering, collecting, or remo-
ving of timber from alienable or disposable public land, or
from private land without any authority; and (3) the
possession of timber or other forest products without the
legal documents as required under existing forest laws and
regulations. Petitioner stands charged of having "cut,
gathered, collected and removed timber or other forest
products from a private land without x x x the necessary
permit x x x " thus his liablity, if ever, should be limited
only for "cut[ting], gather[ing], collect[ing] and remov[ing]
timber," under the second category. Further, the prosecu-
tion evidence showed that petitioner did not perform any
acts of "gathering, collecting, or removing" but only the act
of "cutting" a lone narra tree. Hence, this case hinges on
the question of whether petitioner "cut x x x timber" in the
Mayod Property without a DENR permit.
We answer in the affirmative and thus affirm the lower

courts' rulings.
On the question of whether petitioner cut a narra tree in

the Mayod Property without a DENR permit, petitioner
adopted conflicting positions. Before his trial, petitioner
consistently represented to the authorities that he cut a
narra tree in the Mayod Property and that he did so only
with Calix's permission. However, when he testified,
petitioner denied cutting the tree in question. We sustain
the lower courts' rulings that petitioner's extrajudicial
admissions bind him. Petitioner does not explain why
Royo and Hernandez, public officials who testified under
oath in their official capacities, would lie on the stand to

implicate petitioner in a serious criminal offense, not to
mention that the acts of these public officers enjoy the
presumption of regularity. Further, petitioner does not
deny presenting Calix's authorization to Royo and
Hernandez as his basis for cutting the narra tree in the
Mayod Property. Petitioner has no use of Calix's
authorization if, as he claimed during the trial, he did not
cut any tree in the Mayod Property.
We further hold that the lone narra tree petitioner cut from
the Mayod Property constitutes "timber" under Section 68
of PD 705, as amended. PD 705 does not define "timber,"
only "forest product" (which circuitously includes
"timber.") Does the narra tree in question constitute
"timber" under Section 68? The closest this Court came to
defining the term "timber" in Section 68 was to provide
that "timber," includes "lumber" or "processed log." In
other jurisdictions, timber is determined by compliance
with specified dimensions or certain "stand age" or
"rotation age." In Mustang Lumber, Inc. v. Court of
Appeals, this Court was faced with a similar task of having
to define a term in Section 68 of PD 705- "lumber" -to
determine whether possession of lumber is punishable
under that provision. In ruling in the affirmative, we held
that "lumber" should be taken in its ordinary or common
usage meaning to refer to "processed log or timber," thus:
The Revised Forestry Code contains no definition of either

timber or lumber. While the former is included in forest
products as defined in paragraph (q) of Section 3, the latter
is found in paragraph (aa) of the same section in the
definition of "Processing plant," which reads:
(aa) Processing plant is any mechanical set-up, machine or

combination of machine used for the processing of logs
and other forest raw materials into lumber, veneer,
plywood, wallboard, blackboard, paper board, pulp, paper
or other finished wood products.
This simply means that lumber is a processed log or

processed forest raw material. Clearly, the Code uses the
term lumber in its ordinary or common usage. In the 1993
copyright edition of Webster's Third New International
Dictionary, lumber is defined, inter alia, as "timber or logs
after being prepared for the market." Simply put, lumber is
a processed log or timber.
It is settled that in the absence of legislative intent to the
contrary, words and phrases used in a statute should be
given their plain, ordinary, and common usage meaning.
And in so far as possession of timber without the required
legal documents is concerned, Section 68 of PD No. 705, as
amended, makes no distinction between raw and procesed
timber. Neither should we. x x x x. 3
We see no reason why, as in Mustang, the term "timber"
under Section 68 cannot be taken in its common accept-
ation as referring to "wood used for or suitable for building
or for carpentry or joinery." Indeed, tree saplings or tiny
tree stems that are too small for use as posts, panelling,
beams, tables, or chairs cannot be considered timber.
Here, petitioner was charged with having felled a narra
tree and converted the same into "several pieces of sawn
lumber, about three (3) pcs. 2x16x6 and three (3) pcs.
2x18x7 x x x consisting of 111 board feet x x x." These
measurements were indicated in the apprehension receipt
Hernandez issued to petitioner on 26 January 1999 which
the prosecution introduced in evidence. Further, Her-
nandez testified that the larger portion of the felled log left
in the Mayod Property "measured 76 something centi-
meters [at the big end] while the smaller end measured 65
centimeters and the length was 2.8 meters." Undoubtedly,
the narra tree petitioner felled and converted to lumber
was "timber" fit "for building or for carpentry or joinery"
Italicization in the original; boldfacing supplied.

and thus falls under the ambit of Section 68 of PD 705, as

amended.
Despite this, illegal logging is rampant throughout the
country, not because of the absence of effective laws, but
because of the government's lack of resources devoted to
enforcement.
4.3 PolicyAnalysis
4.3.1 Evolution of Forest Policies
The history of Philippine Forestry has been marked by
rampant and rapid human utilization and exploitation of the
forest resources encouraged by past forest policies that
allowed exploitative activities, which led to severe deforest-
ation of the country's forest lands.34 The primary law on
Philippine Forestry is Presidential Decree 705, more
commonly known as the Revised Forestry Code, which was
issued during the Marcos Administration in 1975. It exhibits
the same utilitarian policy, but introduced the idea of
sustainable use of forest resources.
The Code identified the need to regulate forestry activities in
order to maximize and ensure the continuous productivity of
the forests to support the demands of the country. This had
been addressed through the issuance of license agreements,
licenses, leases or permits that grant its holders the privilege
to pursue any activity within specific forest concession areas,
subject t-o further government regulation to guarantee
sustainable utilization of forest resources. To enforce its
policy of sustainable forest utilization, the Code authorized
the President of the country to "amend, modify, replace, or
Juan Pulhin, Trends in Forest Policy in the Philippines 29, 31-33 (Policy
Trend Report, 2002). <http://enviroscope.iges.or.jp/modules/envirolib/
upload/371/attach/03_Philippines.pdf>.
rescind" any privileges granted in consideration of national

interest and to suspend the same upon determination of any
violation of the stipulated conditions therein such as reforest-
ation and environmental protection.35 This is one manner by
which to deter the grant holders from violating the require-
ments of forest protection and rehabilitation especially since
these activities would require additional financial expendi-
tures on their part. P.D. No. 705 also provide for penal
sanctions for the conduct unauthorized logging and/or other
forest activities, among other things. 36 The criminalization of
these activities emphasize the importance of ensuring
sustainability of forest productivity to secure its continued
contribution of the timber industry to the country's economic
growth.
Table 5. Definitions of the Different Privileges or Grants

37
authorized by the Revised Forestry Code
Privileges Definitions as stated in Section 3 of P.D. 705

Lease "a privilege granted by the State to a person to
occupy and possess, in consideration of specified
rental, any forest land of the public domain in
order to undertake any authorized activity
therein"
License "a privilege granted by the State to a person to
utilize forest resources within any forest land,
without any right of occupation and possession
over the same, to the exclusion of others, or
establish and operate a wood-processing plant, or
conduct any activity involving the utilization of
any forest resources"
License "a privilege granted by the State to a person to
Agreement utilize forest resources within any forest land with
35 P.D. No. 705, Sections 2, 19,20.

36 Ibid., Sections 77-88.
37 Ibid., Section 3.
Privileges Definitions as stated in Section 3 of P.D. 705

the right of possession and occupation thereof to
the exclusion of others, except the government,
but with the corresponding obligation to develop,
protect and rehabilitate the same in accordance
with the terms and conditions set forth in said
agreement"
Permit "short-term privilege or authority granted by the
State to a person to utilize any limited forest
resources or undertake a limited activity within
any forest land without any right to occupation
and possession therein"
While the Code mainly regulates forestry activities, namely

timber harvesting and wood processing, we must note that it
did pave the way for more protectionist laws subsequently
enforced by the government. Section 37 of the said Code
states that "all measures shall be taken to protect the forest
resources from destruction, impairment and depletion."
This provision can be taken as an authorization from
Congress for all subsequent actions or measures undertaken
by concerned government agencies and offices pursuant to
forest protection and conservation.
In 1991, more than a decade after P.D. No. 705's enactment,

came the next significant forest protection measure in the
form of DENR Administrative Order No. 24 during the
Aquino administration. This DAO signified the beginning of
the State's gradual shift on its approach concerning the
country's forest resources, from one that was primarily
utilitarian to that of conservationist since it implemented a
nationwide ban on logging activities in all Old-Growth
(Virgin) Forests and limited the same to only Second-Growth
(Residual) Forest. The remaining virgin forests were then
-8Ibid., Section 37.

reclassified to become part of the permanent national forest

estate of the country. 39 DAO No. 24's policy then was not to
ban commercial logging altogether but to minimize the
extent of its destructive impact on Philippine Forests.
Furthering the shift in forestry policy towards a more

protectionist slant was the enactment of Executive Order No.
263 in 1995. While previously, the government relied on
commercial logging ventures to ensure forest management
and conservation under P.D. No. 705, this E.O. acknow-
ledged the important role of local communities, the main
stakeholders in terms of the forests and its resources, in
effectively protecting the said resources. Through this E.O.,
the Community-Based Forest Management was formally
adopted as the "national strategy to achieve sustainable
forestry... "' 4° Under this strategy, the grant of long-term
tenurial agreements to organized communities allowed them
to engage in forestry activities within their allocated areas as
long as they utilize "environment-friendly, ecologically
sustainable and labor-intensive harvesting methods."41
However, to be able to achieve its goal of conserving and
rehabilitating the forests, the E.O. not only gives community
stakeholders equal access to forest lands - it also empowers
them to be able to take advantage of such opportunity. To
realize its goal of empowering the local communities to take
part in these forest conservation schemes, the E.O. mandates
the DENR to provide financing and support mechanisms
such as community forestry training programs to the
communities that will equip them with the knowledge, skills
and financial capacity to responsibly utilize and effectively
protect the country's forest resources. 42
39 DENR Administrative Order No. 24 (May 3,1991).

40Executive Order No. 263 (1995), Section 1.
41 Ibid., Section 3.
42Ibid., Sections 6, 8,10,11.
Unfortunately, even with the actions taken to veer Philippine

forestry policy away from the historical utilitarian thinking
to a more protectionist orientation, the problem of deforest-
ation has not been abated. The effects of deforestation,
primarily flash floods and landslides across the country that
cause injury to persons and property, still remained over the
years. This reality led to the issuance of Executive Order No.
23, under the second Aquino administration in 2011. 43 This
E.O. imposed a moratorium on all logging activities in all
natural and residual Philippine forests. To implement this
mandate, the DENR is restricted from granting and renewing
any logging contract or agreement concerning said forests
previously authorized by law including the Revised Forestry
Code and E.O. No 263. It also has the power to immediately
rescind any of the existing contracts upon finding of
violation of any of its conditions.44 This latest policy on
Philippine forestry is therefore a complete turn-around from
what started and has long been maintained as an exploitative
forest management policy to one that is almost completely
for forest conservation and development in the hope of being
able to save what little forests of the country is left.
Illustration 2. Evolution of Philippine Forestry Policy within the
last 40 years
1e Bied H~
aton
Bias: From Commercial to Community-Based ForestryManagement
43 Situationer for Annex of Executive Order 23 (2011).

44 Executive Order No. 23 (2011), Section 2.
The long history of government-controlled and non-

participatory forest management approach in the country
allowed for highly commercialized exploitation of forest
resources that was mainly taken advantage of by the
country's elite.45 In this light, P.D. No. 705 is not much
different from the previous forest regulations since for the
most part it tackles regulatory issues concerning commercial
forestry privileges that allow logging activities and the
production of wood products for profit. Moreover, a closer
reading of Section 60 of the Code reveals a preference with
respect to potential grantees of forest privileges by stating
that the same shall be made available only to those who are
able to show their financial and technical capacity to
minimize forest exploitation in their logging activity, and
their ability to support a correlative forest conservation and
development program.46 This qualification implies that
commercial corporations because of their vast resources are
most likely the only ones that can participate in such forestry
activities, to the exclusion of local communities who though
desirous of participating, might not necessarily have the
financial or technical means to meet the said requirement.
The Code establishes the general rule of commercial forest

utilization management, by merely referring to local
communities such as cultural minorities as an exception.
Section 52 of the Code emphasizes that upon the effectivity
of the same, only those with licenses or permits shall be
allowed to enter, cultivate and utilize forest lands, save for
occupants of forest lands such as cultural minorities or those
from the local community who have entered the area prior to
45 Juan Pulhin and Makoto Inoue, Dynamics Of Devolution Process In The

Management Of The Philippine Forests, in International Journal of Social
Forestry 3-5 (2008), http://www.ijsf.org/dat/art/volOl/ijsfLvoll-nol_01-pul
hin philippines.pdf.
46 P.D. No. 705, Section 60.
its effectivity. This exemption, however, is subject to the

condition that their forest land holdings shall not be
increased, and that they may subsequently be made to vacate
the premises when the "best land use of the area" arises. 47 As
earlier mentioned, the Code appears to favor commercial
corporations for the utilization of forest resources upon
whom part of the burden of forest protection is given.
However, this in itself presents a problem since there will
always be the temptation on the part of commercial
establishments to skirt away from the responsibility of
conserving and rehabilitating their forest areas due to
additional expenses that they will have to shoulder, which
could reduce their profitability.
Commercial-based forest management was the main forestry
policy until it had been abandoned by the issuance of
Executive Order No. 263, which adopted the community-
based forest management approach as the national strategy
for sustainable forest development. Here, the local
communities are given equitable access to the forest lands
with the responsibility of forest protection through long-term
tenurial agreements backed by financial and technical
assistance to be provided by the DENR.48
Compared, therefore, to the Revised Forestry Code, this E.O.
expressly gives preference to local communities as opposed
to commercial corporations. It not only grants them an
opportunity to participate in forestry activities including its
conservation but also ensures that they have the necessary
capacity to effectively do so. Although forest policies have
allegedly become participatory through the years, reality
belies this assertion due to some technicalities. The E.O. as
well as its Implementing Rules and Regulations have failed
47 Id., at Section 52, 53.

48 Executive Order No. 263 (1995).
to define distinctly the composition of the community to

which it primarily refers. DAO No. 96-29 provides a broad
definition of what is to be considered a "community," thus
allowing persons though with varied or even conflicting
interests to be considered as one group. Regulating agents
themselves have not taken measures to make such
differentiation of interests within groups, which has led to
the continued capture of forest benefits by the elite.49 This
therefore brings the situation back to square one, with forest
management still largely in the hands of commercial
corporations for whom forest rehabilitation and
development is more an expense than an asset.
4.3.2 Logging Moratorium
Executive Order No. 23, which imposed a nationwide
logging moratorium, is a "policy instrument used by
government in response to environmental, socio-economic,
political and other concerns and issues that threaten the
forest and the resources within."50 Executive Order No. 23
imposed this policy with the goal of mitigating the
occurrence of calamities such as flooding and landslides due
to the unabated deforestation happening in the country.5 1
Indeed, the imposition of a logging moratorium is primarily
for the purpose of protecting forests from further
9 Juan Pulhin, Community Forestry in the Philippines: Trends, Issues and

Challenges, 3-4 (1998) <http://www.recofc.org/site/search.php?text=juan
+pulhin>.
50Leonida A. Bugayong, Effectiveness of Logging Ban Policies in Protecting the
Remaining Natural Forests of the Philippines, 4 (2006), available at
http://uerpagefu-berlin.de/ffu/akumwelt/bc2006/papers/Bugayong-.06Berlin
Conference.pdf (Paper presented at the 2006 Berlin Conference on Human
Dimensions of Global Environmental Change - Resource Policies:
Effectiveness, Efficiency, and Equity, held at Freie University, Berlin,
Germany, on 17-18 November 2006).
51 Executive Order No. 23-2011 (Phil.); Situationer for Annex of Executive
Order 23 (2011).
exploitation, in order to ensure a livable environment for

society in general. However, despite the noble intentions
behind the issuance of EO 23, the idea of a nationwide
logging moratorium has been criticized as follows:
1. Inadequate government resources to effectively

implement the logging moratorium. To illustrate this
problem, consider the fact that there is only one forest
guard to every 2,500 to 4,000 ha of forest land instead
the optimal situation of having one forest guard to
every 500 to 2,000 ha.52
2. Calamities identified as the destructive results of
deforestation, will not be averted by a logging
moratorium. According to Dr. Rex Cruz, the flooding
incidents in certain parts of the country that
prompted the issuance of EO 23, was caused by
climate change and not by deforestation. Even
forested areas are not spared from said calamities53
3. Forest lands lose protection without the logging
concessions. When forest concessioners stop
operating, their concessions will be left defenseless
against illegal logging activities.54 More specifically, if
the log ban is improperly implemented it may
estrange the communities involved in Community-
-2 Leonida A. Bugayong, Effectiveness of Logging Ban Policies in Protecting the

Remaining Natural Forests of the Philippines, 8 (2006), available at http://user
page.fu-berlin.de/ffu/akumwelt/bc2006/papers/Bugayong._06BerlinConfe-
rence.pdf (Paper presented at the 2006 Berlin Conference on Human
Dimensions of Global Environmental Change - Resource Policies: Effective-
ness, Efficiency, and Equity, held at Freie University, Berlin, Germany, on
17-18 November 2006)
53
Jennifer Ng, Log Ban Won't Spell End To Floods: Expert, in Business Mirror
(February 8, 2011) <http://www.businessmirror.com.ph/home/top-news/
7224-log-ban-wont-spell-end-to-floods-exper
34 J&
Based forest management who are the "ultimate

55
protectors of forests."
4. Forestry is an economic activity upon which a
fraction of the population relies upon for their daily
sustenance. A logging ban will approximately affect
2 Million employees who depend on the forest
industry for their wages.5 6
5. No forest charges. Since the logging moratorium will
halt forest industry activities, the government will
therefore lose the opportunity to impose taxes on
forest products that contribute to the income of the
57
government.
6. 'Loose' exceptions that could be windows for
deforestation activities. Exceptions to the logging
moratorium such as road construction, if not
specifically defined can be taken advantage and
result to even greater deforestation. 58
4.4 FurtherDiscussion
4.4.1 Illegal Logging or Subsistence Livelihood
In the enforcement of forestry laws, it is often the poor who

are adversely affected because they are dependent on forest
resources for livelihood and have few, if any, other options;
55 Antonio La Vifia, The Forest and the Trees, in Manila Standard Today
(February 15,2011) <http://www.asg.ateneo.edu/ blog2.php?newsid=199>
56 Leonida A. Bugayong, Effectiveness of Logging Ban Policies in Protecting the
Remaining Natural Forests of the Philippines, 7 (2006), available at
http://userpage.fu-berlin.de/ffu/akumwelt/bc2006/papers/Bugayong-06Berlin
Conference.pdf (Paper presented at the 2006 Berlin Conference on Human
Dimensions of Global Environmental Change - Resource Policies: Effective-
ness, Efficiency, and Equity, held at Freie University, Berlin, Germany, on
17-18 November 2006).
57 Id.
58 Antonio La Vida, The Forest and the Trees, in Manila Standard Today
(February 15,2011) <http://www.asg.ateneo.edu/blog2.php?newsid=199>.
they are not aware of the laws and the heavy penalties for
violation; they have been accustomed to traditional forest
use practices that are often in conflict with formal laws.
A recent study 9 analyzed the logging activities in the

Northern Sierra Madre Natural Park, tracing the chain of
people-who are involved, and who benefits. They
summarize the results as follows:
Illegal logging is a threat to biodiversity and rural

livelihoods in the Northern Sierra Madre Natural Park, the
largest protected area in the Philippines. Every year,
between 20,000 to 35,000 cu.m. in wood is extracted from
the park. The forestry service and municipal governments
tolerate illegal logging in the protected area; government
officials argue that banning an important livelihood
activity of the households along the forest frontier will
aggravate rural poverty. However, this reasoning
underestimates the scale of timber extraction, and masks
resource capture and collusive corruption. Illegal logging
in fact forms an obstacle for sustainable rural development
in and around the protected area by destroying
ecosystems, distorting markets, and subverting the rule of
law. Strengthening law enforcement and controlling
corruption are prerequisites for sustainable forest
management in and around protected areas in insular
Southeast Asia.
In both the above study and the situationer at the beginning

of this Chapter, poor upland people are dependent on the
forest for their livelihood. What are the differences between
the two situations? Should the laws or policies also
distinguish between the situations of the poor in both
instances?
59Jan van der Ploeg, Merlijn van Weerd, Andres Masipiquefia, Gerard
Persoon, Illegal logging in the Northern Sierra Madre Natural Park, the
Philippines,in Conservation & Society (Vol. 9, Issue 3, 2011).
Our Forests, Our Life
Wood is a classical element unique to Chinese astrology. Its

influence over those born of those Chinese astrological signs
associated with Wood imbues that person with confidence and
strong will, compassion and desire for cooperation. Wood,
which is also known as the Tree in the Wu Xing elemental
cycle, also symbolizes renewal and rebirth, spring and the
arrival of a new season of growth.
Wood, in short, symbolizes Life: its vitality, perseverance in

the face of obstacles, continuing growth, and flexibility. It
should be no surprise that this element also symbolizes life in
the natural sciences as well.
This immediately brings to mind forests. Apart from

providing fodder and shelter, forests anchor the soil with their
roots, preserving them against the erosive forces of wind,
water, and storm. Through photosynthesis, they help regulate
the climate, also serving in this way as carbon "sinks" or stores
from the conversion of carbon dioxide to oxygen. Trees help
maintain a suitably moist, humid climate, and also prevent
flash floods and landslides when too much water inundates
the land.
Trees also have religious meaning; many indigenous peoples

see trees as sacred. Buddha, for instance, found enlightenment
under a tree. All the great monotheistic religions -the Jewish
Religion, Islam and Christianity-recognize the tree of
knowledge in paradise and its role in salvation. In the bible,
we see this reference to trees frequently, from "the cedars of
Lebanon," in the Song of Songs to the fig tree cursed by the
Jesus Christ to wither for not bearing fruit, and the sycamore
tree the tax collector Zacchaeus climbed so that Jesus would
noticed him. We know the story: after seeing Zacchaeus up the
tree, the Lord asked him to come down, entered his house and
Zacchaeus and his family were "born again" (a good story for
the feast of Pentecost which we celebrated last Sunday). And
then there is the olive tree "on which the Savior of the world
was nailed."
What is at stake with our forests is life itself, especially in a

country that has lost most of its forests and has made itself
more vulnerable to floods and other natural disasters. I believe
President Aquino's total logging ban policy was not an
overreaction, but a needed response to the state of our forests.
The National Greening Program is also a good initiative and
deserves to be supported. What comes next, however, is more
important.
The most serious challenge we must address to protect our

remaining forests and to renew or rejuvenate our forest land
that have not yet been converted into other uses is where to
get the funds to pay for such protection and reforestation. The
money needed for this massive effort is enormous; right now,
we do not have it. Money is needed not only for forest guards
or seedlings needed for tree planting, but above all money is
needed to compensate communities who protect these forests
and newly planted trees. Many of these communities are
indigenous peoples; and unfortunately, many are poor and
marginalized.
In order to solve our forest crisis, we have to change the way

we see our forests, as we have reduced its value to the revenue
we get from the timber we can extract from it. This was wrong
at the time when logging was a major industry in the
country-because we as a country and society ended up
getting very little from that industry. It is even more wrong
now that we can no longer harvest timber - if we follow that
logic, our forests have will no longer have value now that
logging is prohibited.
Clearly, what we need to do is to change the way we see not

just our forests but all of our environmental and natural
ecosystems. We have to begin to see and value these
ecosystems for what they are -sources of critical and essential
ecosystem goods and services that our society and economy
cannot do without. These ecosystems provide food, fiber,
water and shelter. These ecosystems are critical for climate

change - to help us adapt to it, and to help us mitigate our
own contribution to the problem.
Reducing Emissions from Deforestation and Forest

Degradation (REDD-Plus) is a series of initiatives to stop
deforestation, reverse its degradation, and conserve and
enhance forests. The goal of the REDD-Plus mechanism is to
provide incentives for governments, private firms, and local
stakeholders to preserve and enhance forests, as opposed to
harvesting or converting them. The mechanism, however, if
designed or implemented badly, could negatively impact
forest-dependent communities, including indigenous peoples,
or the environment. That is why REDD-Plus must be
accompanied by safeguards for the protection of stakeholder
rights, environmental integrity, and governance. The
Philippines has worked hard and successfully so that the
REDD-Plus agreement (adopted finally in Cancun in 2010)
included such safeguards. Fortunately, as I am able to confirm
now in Bonn, it is now widely accepted that a REDD-Plus
mechanism can only succeed if safeguards and co-benefits
such as the conservation of biodiversity and ecosystem
services, and the alleviation of poverty, are also realized.
Much as the bamboo adapts to the typhoon winds, flexing in

order to prevent breaking under severe forces, the Philippines
must quickly adapt to the pressures of environmental
destruction in order to prevent catastrophe. Much as tree roots
anchor soil, Filipinos must unite in preserving our country's
woodlands as the anchor of our environmental health.
Because, indeed, our forests are our life.
Taken from:
14 June 2011, Manila Standard Today
The Forest and the Trees
There is a well-known idiom about people "nissing the forest

for the trees," i.e., by immersing too much in details, people
fail to see the big picture. In the case of the moratorium on the
cutting and harvesting of timber in natural forests in the
country, more popularly called a logging ban, "the forest" (the
big picture of the state of our forests and environment) and
"the trees" (the details of implementation) are equally
important. Paying attention only to "the forest" and not "the
trees" will, in fact, be counterproductive and result in an even
worse situation for the country's environment.
My position on Executive Order No. 23, issued by President

Benigno Aquino III in February 2011, is clear. I support it;
indeed, I wrote an open letter thanking the President for
issuing this order imposing a nationwide ban on logging.
For the last twenty years, the environmental movement has

demanded an absolute commercial logging ban. In the late
1980s and early 1990s, we lobbied Congress for such a ban but
failed because of the political influence of the timber industry.
Even if we had the facts on our side, we could not win enough
legislators over, and could not get the support of the executive
branch for the ban.
In the early 1990s, environmental lawyer Tony Oposa filed a
case to compel the Department of Environment and Natural
Resources (DENR) to cancel all Timber License Agreements
(TLAs). While the famous case of Oposa vs. Factoranlaid down
important legal principles, such as intergenerational equity
and the liberalization of standing in environmental lawsuits,
the Supreme Court stopped short of stopping logging and
deforestation continued unabated for another decade or so.
From 1996-1998, then DENR Secretary Victor Ramos, one of

the most committed and competent among public servants I
have worked with, became strict with logging companies and
canceled TLAs that were not complying with their legal
obligations. As a result, when we left the DENR in 1998, only a

handful of logging operations remained. Indeed, when
President Aquino acted two weeks ago, very little legal
logging was going on in the country - rendering the log ban
mainly symbolic in its value, but important nonetheless.
While it would have been better if Congress passed a law to

impose a log ban, it did delegate this power to the President
under the Revised Forestry Code. The President rightfully
acted to avert climate impacts like floods and protects forests
and biodiversity.
While supporting the President's decision, it must be

remembered that "the devil is in the details." We have to work
hard to ensure that the log ban is well-implemented, not just
to enforce it, but also so that the ban does not adversely affect
the hundreds of forest communities that depend on forests for
their livelihoods. In particular, Community Based Forest
Management Agreement holders, those communities who
have been given the right to manage forests that they have
occupied, protected and utilized for a long time, might be
unjustly impacted. This includes indigenous peoples and
communities that utilize forest resources for livelihood and
not just for cultural reasons. If it alienates forest peoples and
communities, the log ban will fail, as these peoples and
communities, and not (never) the state, are the ultimate
protectors of forests in the country.
Executive Order No. 23 should be harmonized with Executive
Order No. 263, which was issued by President Fidel V. Ramos
in 1995. The latter adopted community-based forest
management (CBF1V) as the national strategy to ensure the
sustainable development of the country's forests, and
Executive Order No. 318, issued in 2004 by President Gloria
Macapagal-Arroyo, affirmed the primacy of CBFM as our
forest strategy. Executive Order No. 23 does not repeal these
previous orders and CBFM remains the national forest
strategy. Executive Order No. 23, however, must be amended
to identify, under strictly defined criteria and circumstances,
exceptions for CBFM areas.
Given the log ban's potential adverse economic impacts, the

Climate Change Commission should fast track
implementation of the Reducing Emissions from Deforestation
and Degradation-Plus (REDD-Plus) program under the
United Nations Framework Convention on Climate Change.
In the Cancun conference on climate change in 2010, the
Philippines was instrumental in getting REDD-Plus approved.
If designed properly with social, environmental and
governance safeguards, the Philippine National REDD-plus
Strategy (based on CBFMI) should bring significant resources
for forest protection and to support forest workers and
communities. When REDD-Plus is fully implemented, we
might not even have to exempt CBFM areas from the log ban.
Another priority in implementation is ensuring that the good
intentions behind Executive Order No. 23 are not defeated by
loopholes that il-motivated persons could exploit. These
include tightening the exceptions indicated in the order, such
as exempting road construction and area preparation for
plantations from the moratorium, and exceptions that could
result in massive deforestation activities. One issue to clarify is
whether cutting trees for mining purposes is allowed under
the log ban. It is not one of the exceptions indicated, but
mining companies will probably argue differently.
Finally, in order to thresh out the details for implementing the

logging ban, extensive public consultations should be
undertaken. Unfortunately, we do have an implementation
gap in our country, and enforcing our forest laws, including
those on illegal logging, have not been an exception. Among
others, we have to pay attention to the role of enforcement
agencies, local governments and forest communities who are
the front liners in implementing the ban. Funds must be
provided for enforcement. And, of course, corruption in the
forest sector must be addressed.
Scientists should be also be consulted, in order to better

understand the role of deforestation in floods and other
climate impacts. A more holistic response to these events
should be adopted. Environmental Science for Social Change

(ESSC), a Jesuit institution based in the Manila Observatory
inside the Ateneo de Manila campus, has pointed out that
flooding will continue in areas that are flood-prone as this is
the natural course of water. According to ESSC, "[t]he
response needed is to get people out of harm's way and
minimize the debris that will be brought along by the
floodwaters. Major landslides will recur in areas where soil is
of sufficient depth and has reached saturation point after
continuous heavy rainfall. The response is to get people off of
steep slopes and ensure that the appropriate vegetation is
planted to regenerate water infiltration and biodiversity that
will sustain the environment under average climatic
conditions."
Taken from:
15 February 2011, Manila Standard Today
CHAFTER FIVE
Wildlife and Biodiversity Conservation
In the coastal Barangay of Bahura, fishermen engage in the
lucrative trade of collecting live fish for sale to middlemen
who ship the fish to the city and abroad. The demand is of
two kinds: live fish (e.g. grouper (lapu-lapu), humpback
wrasse (mameng) for food in fancy restaurants, and
aquarium fishes (e.g. lionfish, clownfish, butterfly fishes) for
hobbyists. The high demand and high prices for live fish
abroad has created a big incentive for local businessmen to
get into the business. The hobbyists are also expanding
demand to live corals and invertebrates (e.g. nudibranchs
and cone shells). Because of the high demand, unscrupulous
businessmen have trained local fishers to use cyanide to stun
the fish, in order for them to be easily caught. While this
cyanide mixture does not kill the fish, the poison eventually
ends up in coral reefs and kills corals and other associated
creatures.
This problem had become so serious that the LGU issued a

local ordinance banning the transport of all live fish
regardless of the method it was caught, and declared the reef
areas as fish sanctuaries. The DENR also studied the area
and has proposed that it be declared as a protected area.
5.2 LegalAnalysis
5.2.1 What is Wildlife?
There are two laws that apply to this case, namely the
Wildlife Act and Fisheries Code. The application of the law
273
depends on whether the particular species caught can be

considered wildlife or fisheries.
Wildlife Protection and Conservation Act
Republic Act No. 9147 (2001)
xxx
Section 5. Definition of Terms. -'Wildlife" means wild

forms and varieties of flora and fauna, in all developmental
stages, including those which are in captivity or are being
bred or propagated;
xxx
Sec. 7. Collection of ildlife.-Collection of wildlife may be

allowed in accordance with Section 6 of this Act: Provided,
That in the collection of wildlife, appropriate and
acceptable wildlife collection techniques with least or no
detrimental effects to the exdsting wildlife populations and
their habitats shall, likewise, be required: Provided,
further, That collection of wildlife by indigenous people
may be allowed for traditional use and not primarily for
trade: Provided, furthermore, That collection and
utilization for said purpose shall not cover threatened
species: Provided, finally, That Section 23 of this Act shall
govern the collection of threatened species.
Sec. 8. Possession of ildlife.-No person or entity shall be

allowed possession of wildlife unless such person or entity
can prove financial and technical capability and facility to
maintain said wildlife: Provided, That the source was not
obtained in violation of this Act.
Sec. 9. Collection and/or Possession of By-Products and

Derivatives.- By-products and derivatives may be collected
and/or possessed: Provided, That the source was not
obtained in violation of this Act.
Sec. 18. Economically Important Species. -The Secretary,

within one (1) year after the effectivity of this Act, shall
establish a list of economically-important species. A
population assessment of such species shall be conducted
within a reasonable period and shall be regularly reviewed
and updated by the Secretary.
The Collection of certain species shall only be allowed
when the results of the assessment show that, despite
certain extent of collection, the population of such species
can still remain viable and capable of recovering its
numbers. For this purpose, the Secretary shall establish a
schedule and volume of allowable harvests.
Whenever an economically important species become
threatened, any form of collection shall be prohibited
except for scientific, educational or breeding/propagation
purposes, pursuant to the provisions of this Act.
xxx
Sec. 22. Determination of Threatened Species.-The Secretary
shall determine whether any wildlife species or subspecies
is threatened, and classify the same as critically
endangered, endangered, vulnerable or other accepted
categories based on the best scientific data and with due
regard to internationally accepted criteria, including but
not limited to the following:
(a) present or threatened destruction, modifi-
cation or curtailment of its habitat or range;
(b) over-utilization for commercial, recreational,
scientific or educational purposes;
(c) inadequacy of existing regulatory mecha-
nisms; and
(d) other natural or man-made factors affecting
the existence of wildlife.
The Secretary shall review, revise and publish the list of
categorized threatened wildlife within one (1) year after
effectivity of this Act. Thereafter, the list shall be updated
regularly or as the need arises: Provided, That a species

listed as threatened shall not be removed there from within
three (3) years following its initial listing.
Upon filing of a petition based on substantial scientific

information of any person seeking for the addition or
deletion of a species from the list, the Secretary shall
evaluate in accordance with the relevant factors stated in
the first paragraph of this section, the status of the species
concerned and act on said petition within a reasonable
period.
The Secretary shall also prepare and publish a list of

wildlife which resembles so closely in appearance with
listed threatened wildlife, which species shall likewise be
categorized as threatened.
Sec. 23. Collection of Threatened WMldlife, By-products and

Derivatives.-The collection of threatened wildlife, as
determined and listed pursuant to this Act, including its
by-products and derivatives, shall be allowed only for
scientific, or breeding or propagation purposes in
accordance with Section 6 of this Act: Provided, That only
the accredited individuals, business, research, educational
or scientific entities shall be allowed to collect for
conservation breeding or propagation purposes.
xxx
Sec. 25. Establishment of Critical Habitats.-Within two (2)
years following the effectivity of this Act, The Secretary
shall designate critical habitats outside protected areas
under Republic Act No. 7586, where threatened species are
found. Such designation shall be made on the basis of the
best scientific data taking into consideration species
endemicity and/or richness, presence of man-made
pressures/threats to the survival of wildlife living in the
area, among others.
All designated, critical habitats shall be protected, in

coordination with the local government units and other
concerned groups, from any form of exploitation or

destruction which may be detrimental to the survival of
the threatened species dependent therein. For such
purpose, the Secretary may acquire, by purchase, donation
or expropriation, lands, or interests therein, including the
acquisition of usufruct, establishment of easements or
other undertakings appropriate in protecting the critical
habitat.
xxx
Sec. 27. Illegal Acts.-Unless otherwise allowed in

accordance with this Act, it shall be unlawful for any
person to willfully and knowingly exploit wildlife
resources and their habitats, or undertake the following
acts:
(a) killing and destroying wildlife species, except

in the following instances;
(i) when it is done as part of the religious
rituals of established tribal groups or
indigenous cultural communities;
(ii) when the wildlife is afflicted with an
incurable communicable disease;
(iii) when it is deemed necessary to put an end
to the misery suffered by the wildlife;
(iv) when it is done to prevent an imminent
danger to the life or limb of a human
being; and
(v) when the wildlife is killed or destroyed
after it has been used in authorized
research or experiments.
(b) inflicting injury which cripples and/or impairs
the reproductive system of wildlife species;
(c) effecting any of the following acts in critical
habitat(s)
(i) dumping of waste products detrimental to
wildlife;
(ii) squatting or otherwise occupying any

portion of the critical habitat;
(iii) mineral exploration and/or extraction;
(iv) burning;
(v) logging; and
(vi) quarrying
(d) introduction, reintroduction or restocking of

wildlife resources;
(e) trading of wildlife;
(f) collecting, hunting or possessing wildlife, their
by-products and derivatives;
(g) gathering or destroying of active nests, nest
trees, host plants and the like;
(h) maltreating and/or inflicting other injuries not
covered by the preceding paragraph; and
(i) transporting of wildlife.
xxx
It must be noted that many of the fish and shellfish species

considered wildlife are also commonly caught for food.
Under the Fisheries Code, the harvesting of food species that
are endangered or threatened is regulated.
Fisheries Code
Section 4. Definition of Terms. - xxx (17) Endangered, Rare

and/or Threatened Species-aquatic plants, animals,
including some varieties of corals and sea shells in danger
of extinction as provided for in existing fishery laws, rules
and regulations or in the Protected Areas and Wildlife
Bureau of the Department of Environment and Natural
Resources (DENR) and in the Convention of the
International Trade of Endangered Species of Flora and
Fauna (CITES).
(22). Fish and Fishery/Aquatic Products.-include not only
finfish but also mollusks, crustaceans, echinoderms,
marine mammals, and all other species of aquatic flora and
fauna and all other products of aquatic living resources in
any form.
Sec. 11. Protection of Rare, Threatened and Endangered

Species. -The Department shall declare closed seasons and
take conservation and rehabilitation measures for rare,
threatened and endangered species, as it may determine,
and shall ban the fishing and/or taking of rare, threatened
and/or endangered species, including their eggs/offspring
as identified by existing laws in concurrence with
concerned government agencies.
Sec. 86. Unauthorized Fishing or Engaging in Other

Unauthorized Fisheries Activities. -No person shall exploit,
occupy, produce, breed, culture, capture or gather fish, fry
or fingerlings of any fishery species or fishery products, or
engage in any fishery activity in Philippine waters without
a license, lease or permit.
Sec. 88. Fishing Through Explosives, Noxious or Poisonous
Substance, and/or Electricity.-(1) It shall be unlawful for
any person to catch, take or gather or cause to be caught,
taken or gathered, fish or any fishery species in Philippine
waters with the use of electricity, explosives, noxious or
poisonous substance such as sodium cyanide in the
Philippine fishery areas, which will kill, stupefy, disable or
render unconscious fish or fishery species: Provided, That
the Department, subject to safeguards and conditions
deemed necessary and endorsement from the concerned
LGUs, may allow, for research, educational or scientific
purposes only, the use of electricity, poisonous or noxious
substances to catch, take or gather fish or fishery species:
Provided, further, That the use of poisonous or noxious
substances to eradicate predators in fishponds in
accordance with accepted scientific practices and without
causing adverse environmental impact in neighboring
waters and grounds shall not be construed as illegal

fishing.
It will likewise be unlawful for any person, corporation or

entity to possess, deal in, sell or in any manner dispose of,
any fish or fishery species which have been illegally
caught, taken or gathered.
The discovery of dynamite, other explosives and chemical

compounds which contain combustible elements, or
noxious or poisonous substances, or equipment or device
for electro-fishing in any fishing vessel or in the possession
of any fisherfolk, operator, fishing boat official or
fishworker shall constitute prima facie evidence, that the
same was used for fishing in violation of this Code. The
discovery in any fishing vessel of fish caught or killed with
the use of explosive, noxious or poisonous substances or
by electricity shall constitute prima facie evidence that the
fisherfolk, operator, boat official or fishworker is fishing
with the use thereof.
(2) Mere possession of explosive, noxious or poisonous

substances or electrofishing devices for illegal fishing shall
be punishable by imprisonment ranging from six (6)
months to two (2) years.
(3) Actual use of explosives, noxious or poisonous
substances or electro fishing devices for illegal fishing shall
be punishable by imprisonment ranging from five (5) years
to ten (10) years without prejudice to the filing of separate
criminal cases when the use of the same result to physical
injury or loss of human life.
(4) Dealing in, selling, or in any manner disposing of, for

profit, illegally caught/gathered fisheries species shall be
punished by imprisonment ranging from six (6) months to
two (2) years.
(5) In all cases enumerated above, the explosives, noxious
or poisonous substances and/or electrical devices, as well
as the fishing vessels, fishing equipment and catch shall be

forfeited.
Sec. 97. Fishing or Taking of Rare, Threatened or Endangered
Species. - It shall be unlawful to fish or take rare,
threatened or endangered species as listed in the CITES
and as determined by the Department. Violation of the
provision of this section shall be published by
imprisonment of twelve (12) years to twenty (20) years
and/or a fine of One hundred and twenty thousand pesos
(120,000.00) and forfeiture of the catch, and the cancellation
of fishing permit.
DENR has issued a list of threatened terrestrial species of
animals DAO 2004-15 (fauna), and plants DAO 2007-01
(flora). The humpback wrasse or mameng is listed under
CITES Appendix II, so are many corals and cone shells.
These are species that are not necessarily threatened with
extinction, but may become so unless trade in specimens of
such species is subject to strict regulation in order to avoid
utilization incompatible with the survival of the species in
the wild.
In the case of Tano, et al. vs. Socrates, et al., the Supreme Court
had the ocassion to review the local ordinances issued by
Puerto Princesa City and Palawan Province that banned the
shipment of live fish. The extreme measure was necessary
because illegal fishermen were using cyanide to catch the
live fish. Cyanide fishing has also resulted in the destruction
of the coral reef habitats of the target fishes.
Tano et al. vs. Socrates et al.
G.R. No. 110249, August 21, 1997
On December 15, 1992, the Sangguniang Panlungsod ng
Puerto Princesa City enacted Ordinance No. 15-92 which
took effect on January 1, 1993 entitled: "AN ORDINANCE
BANNING THE SHIPMENT OF ALL LIVE FISH AND
LOBSTER OUTSIDE PUERTO PRINCESA CITY FROM
JANUARY 1, 1993 TO JANUARY 1, 1998 AND

PROVIDING EXEMPTIONS, PENALTIES AND FOR
OTHER PURPOSES THEREOF"
To implement said city ordinance, then Acting City Mayor

Amado L. Lucero issued Office Order No. 23, Series of 1993
dated January 22, 1993 which reads as follows: In the
interest of public service and for purposes of City
Ordinance No. PD 426-14-74, otherwise known as "AN
ORDINANCE REQUIRING ANY PERSON ENGAGED OR
INTENDING TO ENGAGE IN ANY BUSINESS, TRADE,
OCCUPATION, CALLING OR PROFESSION OR
HAVING IN HIS POSSESSION ANY OF THE ARTICLES
FOR WHICH A PERMIT IS REQUIRED TO BE HAD, TO
OBTAIN FIRST A MAYOR'S PERMIT" and "City
Ordinance No. 15-92, AN ORDINANCE BANNING THE
SHIPMENT OF ALL LIVE FISH AND LOBSTER OUTSIDE
PUERTO PRINCESA CITY FROM JANUARY 1, 1993 TO
JANUARY 1, 1998, you are hereby authorized and directed
to check or conduct necessary inspections on cargoes
containing live fish and lobster being shipped out from the
Puerto Princesa Airport, Puerto Princesa Wharf or at any
port within the jurisdiction of the City to any point of
destinations [sic] either via aircraft or seacraft.
On February 19, 1993, the Sangguniang Panlalawigan,

Provincial Government of Palawan enacted Resolution No.
33 entitled: "A RESOLUTION PROHIBITING THE
CATCHING, GATHERING, POSSESSING, BUYING,
SELLING AND SHIPMENT OF LIVE MARINE CORAL
DWELLING AQUATIC ORGANISMS, TO WIT: FAMILY:
SCARIDAE (MAMENG), EPINE PHELUS FASCIATUS
(SUNO). CROMILEPTES ALTIVEUS (PANTHER OR
SENORITA), LOBSTER BELOW 200 GRAMS AND
SPAWNING, TRIDACNA GIGAS (TAKLOBO),
PINCTADA MARGARITEFERA (MOTHER PEARL,
OYSTERS, GIANT CLAMS AND OTHER SPECIES),
PENAEUS MONODON (TIGER PRAWN-BREEDER SIZE
OR MOTHER), EPINEPHELUS SUILLUS (LOBA OR
GREEN GROUPER) AND FAMILY: BALSTIDAE
(TROPICAL AQUARIUM FISHES) FOR A PERIOD FIVE
(5) YEARS IN AND COMING FROM PALAWAN
WATERS
xxx
Without seeking redress from the concerned local

government units, prosecutor's office and courts,
petitioners directly invoked our original jurisdiction by
filing this petition on 4 June 1993. In sum, petitioners
contend that:
First, the Ordinances deprived them of due process of law,

their livelihood, and unduly restricted them from the
practice of their trade, in violation of Section 2, Article XII
and Sections 2 and 7 of Article XIII of the 1987
Constitution.
Second, Office Order No. 23 contained no regulation nor
condition under which the Mayor's permit could be
granted or denied; in other words, the Mayor had the
absolute authority to determine whether or not to issue the
permit.
Third, as Ordinance No. 2 of the Province of Palawan
"altogether prohibited the catching, gathering, possession,
buying, selling and shipping of live marine coral dwelling
organisms, without any distinction whether it was caught
or gathered through lawful fishing method," the
Ordinance took away the right of petitioners-fishermen to
earn their livelihood in lawful ways; and insofar as
petitioners-members of Airline Shippers Association are
concerned, they were unduly prevented from pursuing
their vocation and entering "into contracts which are
proper, necessary, and essential to carry out their business
endeavors to a successful conclusion."
xxx
After a scrutiny of the challenged Ordinances and the
provisions of the Constitution petitioners claim to have
been violated, we find petitioners' contentions baseless

and so hold that the former do not suffer from any
infirmity, both under the Constitution and applicable laws.
xxx
The LGC provisions invoked by private respondents

merely seek to give flesh and blood to the right of the
people to a balanced and healthful ecology. In fact, the
General Welfare Clause, expressly mentions this right:
Sec. 16. General Welfare.-Every local government

unit shall exercise the powers expressly granted,
those necessarily implied therefrom, as well as
powers necessary, appropriate, or incidental for its
efficient and effective governance, and those which
are essential to the promotion of the general
welfare. Within their respective territorial
jurisdictions, local government units shall ensure
and support, among other things, the preservation
and enrichment of culture, promote health and
safety, enhance the right of the people to a balanced
ecology, encourage and support the development of
appropriate and self-reliant scientific and
technological capabilities, improve public morals,
enhance economic prosperity and social justice,
promote full employment among their residents,
maintain peace and order, and preserve the
comfort and convenience of their inhabitants.
(emphasis supplied).
Moreover, Section 5(c) of the LGC explicitly mandates that

the general welfare provisions of the LGC "shall be
liberally interpreted to give more powers to the local
government units in accelerating economic development
and upgrading the quality of life for the people of the
community."
The LGC vests municipalities with the power to grant

fishery privileges in municipal waters and impose rentals,
fees or charges therefor; to penalize, by appropriate

ordinances, the use of explosives, noxious or poisonous
substances, electricity, muro-ami, and other deleterious
methods of fishing; and to prosecute any violation of the
provisions of applicable fishery laws. Further, the
sangguniang bayan, the sangguniang panlungsod and the
sangguniang panlalawigan are directed to enact
ordinances for the general welfare of the municipality and
its inhabitants, which shall include, inter alia, ordinances
that "[pirotect the environment and impose appropriate
penalties for acts which endanger the environment such as
dynamite fishing and other forms of destructive fishing...
and such other activities which result in pollution,
acceleration of eutrophication of rivers and lakes, or of
ecological imbalance."
Finally, the centerpiece of LGC is the system of

decentralization as expressly mandated by the
Constitution. Indispensable to decentralization is devolution
and the LGC expressly provides that "[a]ny provision on a
power of a local government unit shall be liberally
interpreted in its favor, and in case of doubt, any question
thereon shall be resolved in favor of devolution of powers
and of the lower local government unit. Any fair and
reasonable doubt as to the existence of the power shall be
interpreted in favor of the local government unit
concerned." Devolution refers to the act by which the
National Government confers power and authority upon
the various local government units to perform specific
functions and responsibilities.
One of the devolved powers enumerated in the section of

the LGC on devolution is the enforcement of fishery laws
in municipal waters including the conservation of
mangroves. This necessarily includes the enactment of
ordinances to effectively carry out such fishery laws within
the municipal waters.
At this time then, it would be appropriate to determine the

relation between the assailed Ordinances and the aforesaid
powers of the Sangguniang Panlungsod of the City of
Puerto Princesa and the Sangguniang Panlalawigan of the
Province of Palawan to protect the environment. To begin,
we ascertain the purpose of the Ordinances as set forth in
the statement of purposes or declaration of policies quoted
earlier.
It is clear to the Court that both Ordinances have two

principal objectives or purposes: (1) to establish a "closed
season" for the species of fish or aquatic animals covered
therein for a period of five years; and (2) to protect the
coral in the marine waters of the City of Puerto Princesa
and the Province of Palawan from further destruction due
to illegal fishing activities.
The accomplishment of the first objective is well within the
devolved power to enforce fishery laws in municipal
waters, such as P.D. No. 1015, which allows the establish-
ment of "closed seasons." The devolution of such power
has been expressly confirmed in the Memorandum of
Agreement of 5 April 1994 between the Department of
Agriculture and the Department of Interior and Local
Government.
The realization of the second objective clearly falls within

both the general welfare clause of the LGC and the express
mandate thereunder to cities and provinces to protect the
environment and impose appropriate penalties for acts
which endanger the environment.
The destruction of coral reefs results in serious, if not
irreparable, ecological imbalance, for coral reefs are among
nature's life-support systems. They collect, retain and
recycle nutrients for adjacent nearshore areas such as
mangroves, seagrass beds, and reef flats; provide food for
marine plants and animals; and serve as a protective
shelter for aquatic organisms. It is said that "[elcologically,
the reefs are to the oceans what forests are to continents:
they are shelter and breeding grounds for fish and plant
species that will disappear without them."
The prohibition against catching live fish stems, in part,

from the modem phenomenon of live-fish trade which
entails the catching of so-called exotic species of tropical
fish, not only for aquarium use in the West, but also for
"the market for live banquet fish [which] is virtually
insatiable in ever more affluent Asia. These exotic species
are coral-dwellers, and fishermen catch them by "diving in
shallow water with corraline habitats and squirting
sodium cyanide poison at passing fish directly or onto
coral crevices; once affected the fish are immobilized
[merely stunned] and then scooped by hand." The diver
then surfaces and dumps his catch into a submerged net
attached to the skiff. Twenty minutes later, the fish can
swim normally. Back on shore, they are placed in holding
pens, and within a few weeks, they expel the cyanide from
their system and are ready to be hauled. They are then
placed in saltwater tanks or packaged in plastic bags filled
with seawater for shipment by air freight to major markets
for live food fish. While the fish are meant to survive, the
opposite holds true for their former home as "[a]fter the
fisherman squirts the cyanide, the first thing to perish is
the reef algae, on which fish feed. Days later, the living
coral starts to expire. Soon the reef loses its function as
habitat for the fish, which eat both the algae and
invertebrates that cling to the coral. The reef becomes an
underwater graveyard, its skeletal remains brittle,
bleached of all color and vulnerable to erosion from the
pounding of the waves." It has been found that cyanide
fishing kills most hard and soft corals within three months
of repeated application.
The nexus then between the activities barred by Ordinance
No. 15-92 of the City of Puerto Princesa and the prohibited
acts provided in Ordinance No. 2, Series of 1993 of the
Province of Palawan, on one hand, and the use of sodium
cyanide, on the other, is painfully obvious. In sum, the
public purpose and reasonableness of the Ordinances may

not then be controverted.
xxx
5.3 Policy Analysis

Enforcement of the law banning the use of cyanide is
difficult, as shown by the evidentiary requirements
discussed in the case of Hizon. In this case, the chain of
custody of samples sent for testing was called into question.
Hizon, et al. vs. Court of Appeals, et al.
G.R. No. 119619, December 13,1996
In September 1992, the Philippine National Police (PNP)
Maritime Command of Puerto Princesa City, Palawan
received reports of illegal fishing operations in the coastal
waters of the city. In response to these reports, the city
mayor organized Task Force Bantay Dagat to assist the
police in the detection and apprehension of violators of the
laws on fishing.
On September 30, 1992 at about 2:00 in the afternoon, the
Task Force Bantay Dagat reported to the PNP Maritime
Command that a boat and several small crafts were fishing
by "muro ami" within the shoreline of Barangay San Rafael
of Puerto Princesa. The police, xxx immediately proceeded
to the area and found several men fishing in motorized
sampans and a big fishing boat identified as F/B Robinson
within the seven-kilometer shoreline of the city. They
boarded the F/B Robinson and inspected the boat with the
acquiescence of the boat captain, Silverio Gargar. In the
course of their inspection, the police saw two foreigners in
the captain's deck. SP03 Enriquez examined their pass-
ports and found them to be mere photocopies. The police
also discovered a large aquarium full of live lapu-lapu and
assorted fish weighing approximately one ton at the
bottom of the boat. They checked the license of the boat
and its fishermen and found them to be in order.
Nonetheless, SP03 Enriquez brought the boat captain, the

crew and the fishermen to Puerto Princesa for further
investigation.
xxx
The following day, October 1, 1992, SP03 Enriquez
directed the boat captain to get random samples of fish
from the fish cage of F/B Robinson for laboratory
examination. As instructed, the boat engineer, petitioner
Ernesto Andaya, delivered to the Maritime Office four (4)
live lapu-lapu fish inside a plastic shopping bag filled with
water. SP03 Enriquez received the fish and in the presence
of the boat engineer and captain, placed them inside a
large transparent plastic bag without water. He sealed the
plastic with heat from a lighter.
The specimens were brought to the National Bureau of

Investigation (NBI) sub-office in the city for examination
"to determine the method of catching the same for record
or evidentiary purposes." They were received at the NBI
office at 8:00 in the evening of the same day. The receiving
clerk, Edna Capicio, noted that the fish were dead and she
placed the plastic bag with the fish inside the office freezer
to preserve them. Two days later, on October 3, 1992, the
chief of the NBI sub-office, Onos Mangotara, certified the
specimens for laboratory examination at the NBI Head
Office in Manila. The fish samples were to be personally
transported by Edna Capicio who was then scheduled to
leave for Manila for her board examination in Crimi-
nology. On October 4, 1992, Ms. Capicio, in the presence of
her chief, took the plastic with the specimens from the
freezer and placed them inside two shopping bags and
sealed them with masking tape. She proceeded to her ship
where she placed the specimens in the ship's freezer.
Capicio arrived in Manila the following day, October 5,

1992 and immediately brought the specimens to the NBI
Head Office. On October 7, 1992, NBI Forensic Chemist
Emilia Rosaldes conducted two tests on the fish samples

and found that they contained sodium cyanide, xxx
In light of these findings, the PNP Maritime Command of
Puerto Princesa City filed the complaint at bar against the
owner and operator of the F/B Robinson, the First
Fishermen Fishing Industries, Inc., represented by herein
petitioner Richard Hizon, the boat captain, Silverio Gargar,
the boat engineer, Ernesto Andaya, two other crew
members, the two Hongkong nationals and 28 fishermen of
the said boat.
xxx
We now review the evidence to determine whether
petitioners have successfully rebutted this presumption.
The facts show that on November 13, 1992, after the
Information was filed in court and petitioners granted bail,
petitioners moved that the fish specimens taken from the
F/B Robinson be reexamined. The trial court granted the
motion. As prayed for, a member of the PNP Maritime
Command of Puerto Princesa, in the presence of
authorized representatives of the F/B Robinson, the NBI
and the local Fisheries Office, took at random five (5) live
lapu-lapu from the fish cage of the boat. The specimens
were packed in the usual manner of transporting live fish,
taken aboard a commercial flight and delivered by the
same representatives to the NBI Head Office in Manila for
chemical analysis.
On November 23, 1992, Salud Rosales, another forensic
chemist of the NBI in Manila conducted three (3) tests on
the specimens and found the fish negative for the presence
of sodium cyanide, xxx
The Information charged petitioners with illegal fishing
"with the use of obnoxious or poisonous substance
(sodium cyanide), of more or less one (1) ton of assorted
live fishes" There was more or less one ton of fishes in the
F/B Robinson's fish cage. It was from this fish cage that the
four dead specimens examined on October 7,1992 and the
five specimens examined on November 23, 1992 were
taken. Though all the specimens came from the same
source allegedly tainted with sodium cyanide, the two tests
resulted in conflicting findings. We note that after its
apprehension, the F/B Robinson never left the custody of
the PNP Maritime Command. The fishing boat was
anchored near the city harbor and was guarded by
members of the Maritime Command 4 . It was later turned
over to the custody of the Philippine Coast Guard
Commander of Puerto Princesa City.
The prosecution failed to explain the contradictory

findings on the fish samples and this omission raises a
reasonable doubt that the one ton of fishes in the cage were
caught with the use of sodium cyanide.
The absence of cyanide in the second set of fish specimens

supports petitioners' claim that they did not use the poison
in fishing. According to them, they caught the fishes by the
ordinary and legal way, i.e., by hook and line on board
their sampans.
xxx
The only basis for the charge of fishing with poisonous

substance is the result of the first NBI laboratory test on the
four fish specimens. Under the circumstances of the case,
however, this finding does not warrant the infallible
conclusion that the fishes in the F/B Robinson, or even the
same four specimens, were caught with the use of sodium
cyanide.
Prosecution witness SPO1 Bernardino Visto testified that

for the first laboratory test, boat engineer Ernesto Andaya
did not only get four (4) samples of fish but actually got
five (5) from the fish cage of the F/B Robinson. The
Certification that four (4) fish samples were taken from the
boat shows on its face the number of pieces as originally
"five (5)" but this was erased with correction fluid and
"four (4)" written over it. The specimens were taken, sealed
inside the plastic bag and brought to Manila by the police
authorities in the absence of petitioners or their
representative. SP02 Enriquez testified that the same
plastic bag containing the four specimens was merely
sealed with heat from a lighter. Emilia Rosales, the NBI
forensic chemist who examined the samples, testified that
when she opened the package, she found the two ends of
the same plastic bag knotted. These circumstances as well
as the time interval from the taking of the fish samples and
their actual examination s fail to assure the impartial mind
that the integrity of the specimens had been properly
safeguarded.
Apparently, the members of the PNP Maritime Command

and the Task Force Bantay Dagat were the ones engaged in
an illegal fishing expedition. As sharply observed by the
Solicitor General, the report received by the Task Force
Bantay Dagat was that a fishing boat was fishing illegally
through "muro ami" on the waters of San Rafael. "Muro
ami" according to SPO1 Saballuca is made with "the use of
a big net with sinkers to make the net submerge in the
water with the fishermen surround[ing] the net." This
method of fishing needs approximately two hundred (200)
fishermen to execute. What the apprehending officers
instead discovered were twenty eight (28) fishermen in
their sampans fishing by hook and line. The authorities
found nothing on the boat that would have indicated any
form of illegal fishing. All the documents of the boat and
the fishermen were in order. It was only after the fish
specimens were tested, albeit under suspicious circums-
tances, that petitioners were charged with illegal fishing
with the use of poisonous substances. xxx
It is worth noting that in the Hizon case, the prosecution

failed to explain the inconsistency of the first and second
sampling results. Perhaps the prosecution was unaware that
the small traces of cyanide that turned up in the first
sampling will have been metabolized (therefore undetect-
able) in a matter of hours or days. The levels of cyanide

would have been very small to begin with or it would have
killed the fish. After the trace amounts of cyanide were
metabolized, the results of the second testing would likely be
negative for cyanide.
There are two environmental issues often related to
biodiversity and wildlife: biosafety and bioprospecting.
Biosafety refers to "a condition in which the probability of
harm, injury and damage resulting from the intentional and
unintentional introduction and/or use of a regulated article is
within acceptable and manageable levels;"6O bioprospecting
"means the research, collection and utilization of biological
and genetic resources for purposes of applying the know-
ledge derived there from solely for commercial purposes." 61
5.4.1. Biosafety and Alien Invasive Species
A genetically modified organism is a product of genetic
engineering, a process that allows for the selection and trans-
fer of specific genes from one organism to another.62
Although genetically modified organisms may seem
promising -especially with regard to their potential to end
food security issues in developing countries-safety issues
with respect to their possible effects on humans and the
environment have been and continue to be raised. 63 The
60 National BiosafetyFramework, §3.3.1.

61 Rep. Act 9147, § 5,
cl. A (Phil.).
62
Ameurfina Dumlao-Santos, A Crash Course in GMOs, in Selected Essays on
Science and Technology for Securing A Better Philippines 318 (Cesar Saloma,
et. al. eds., 2008).
63
Corazon Catibog-Sinha and Lawrence R. Heaney, Philippine Biodiversity:
Principlesand Practice,HARIBON 104 (2006).
following issues have been raised against GMO introduction

and commercialization:
1. Human Health Concern
Opposition groups to GMOs claim that this type of food

pose health risks to human beings. 64 The case of the Bt
Corn crop introduced in the country is illustrative of this
point. Bt Corn is a corn plant, which was incorporated
with an additional gene from a particular soil micro-
organism intended to make the same resistant to particular
insects responsible for crop destruction. It is "so far, the
only approved GM crop for commercial propagation."6 5
An advantage of this crop is that it generates more produce
for the farmers because insect infestations are greatly
reduced. However, there are certain issues that prevent its
widespread acceptance by the public. A significant issue
involves the "Fear, Uncertainty and Doubt tactics" used by
those rallying against GMOs. In 2004, a certain Norwegian
scientist was quoted by the media to have observed ill
effects on particular persons in a community in Mindanao,
which he attributed to Bt corn. However, the ill effects
claimed had been subsequently investigated by private
and public health professionals and was confirmed to be
"unlikely due to Bt corn."66 Unfortunately claims similar to
these can indeed make the public doubt the safety of the
crop for human consumption. A statement by Dumlao-
Santos may be found by many to be enlightening:
6David Dawe and Laurian Unnevehr, Crop Case Study: GMO Golden Rice in
Asia with Enhanced Vitamin A Benefitsfor Consumers, in AgBioForum 10(3) 155
(2007), avaible at: http://www.agbioforum.org/vln3/vln3aO4-unnevehr.pdf.
6 Arneurfina Dunmlao-Santos, A Crash Course in GMOs, in Selected Essays On
Science And Technology For Securing A Better Philippines 318-319 (Cesar
Saloma, et. al. eds., 2008).
6Benigno Peczon, The ContinuingBt Corn War, in Selected Essays On Science
And Technology For Securing A Better Philippines 298-299 (Cesar Saloma,
et al. eds., 2008).
'ut in dealing with the GMO debate, it is human
logic that will resolve issues on human technology.
This Bt substance, a protein, exists in an in-
activated form; it is activated only in the alkaline
medium of the insect's gut Once activated, this
toxin binds to specific receptors in the insect's gut
and bores holes through the membrane. The toxin
is thus known as gut poison. But our stomachs are
acidic; thus, the toxin cannot be activated. Further-
more, we do not have receptors to bind the toxin.
So what happens to the Bt substance in the corn
that we eat? This will be treated by our digestive
systems just like any protein, and will be broken
down into tiny pieces. Eating Bt corn is no
67
different from eating non-Bt corn."
2. Environmental Concerns (especially with regard to

GM crops)
One risk to the environment cited against GM crop

cultivation is the danger of "gene flow," which is "the
possibility that GM crops will hybridize with their wild
relatives, resulting in the transfer of the transgenes from
the GM crops to their wild counterparts." This gene flow
can lead to certain harmful environmental situations such
as:6
1. The occurrence of the so-called "superweeds"69

2. The threat of extinction of the wild relatives of
the GM crops7O
67
Ameurfina Dumlao-Santos, A Crash Course in GMOs, in Selected Essays On
Science And Technology For Securing A Better Philippines 319 (Cesar
Saloma, et al. eds., 2008).
68 Christina L. Richmond, Genetically Modified Crops in the Philippines: Can
Existing Biosafrty Regulations Adequately Protect the Environment, in Pacific
Rim Law & Policy Journal 573 (2006), available at: http://www.national
aglawcenter.org/setabbarticles/richmondgenetically.pdf.
69Id, at 574.
70aJ
3. The "'genetic pollution' of natural ecosystem

1
diversity"7
In addition, GM crops may have repercussions on non-
targeted organisms as well as cause the intended recipients
to become immune to the pesticides or diseases.72
3. Regulatory Concerns
The slow commercialization of GM products in developing

countries can be attributed to several factors, one of which
is the cost incurred in complying with the biosafety
regulatory requirements. "A high cost of compliance with
biosafety regulations may deter a small firm or public-
sector institution from pursuing GM technologies, or may
cause them to abandon or delay commercialization of
potentially valuable products." This limits the avenues for
commercialization to mostly large corporations who have
enough capital to shoulder high transactional costs.
Another deterrent related to regulatory compliance is the
resulting delay in time for regulatory approval caused for
example by slow or lengthy review procedures, which in
turn result to losses for the investing entity.73 Other
criticisms regarding the present biosafety regulations in the
Philippines as highlighted by the issue of the Bt corn
approval are that they lack measures for "transparent,
independent, and participatory" implementation and
'"mechanisms through which socio-economic concerns
could be addressed in the biosafety decision process. ' 74
72 Id
7
3 Jessica C. Bayer, et. al., Cost of Compliance with Biotechnology Regulation in the
Philippines:Implications for Developing Countries,inAgBioForum, 13(1) 53, 57-
60 (2010), available at: http://www.agbioforum.orgtvl3nl/vl3nla4-norton.
pdf.
74 Lindsey Fransen, et al., IntegratingSocio-Economic Considerationsinto Biosafety
Decisions: The Role of PublicParticipation,World Resources Institute 38 (2005),
available at: http://pdf.wri.org/fransenavina-biosafetywhitepaper.pdf.
5.4.2 Bioprospecting
The Wildlife Resources Conservation and Protection Act
(R.A. No. 9147) defines bioprospecting as "the research,
collection and utilization of biological and genetic resources
for purposes of applying the knowledge derived there solely
for commercial purposes."
Section 14. Bioprospecting shall be allowed upon execution
of an undertaking by any proponent, stipulating therein its
compliance with and commitment(s) to reasonable terms
and conditions that may be imposed by the Secretary,
which are necessary to protect biological diversity.
The Secretary or the authorized representative, in

consultation with the concerned agencies, before granting
the necessary permit, shall require that prior informed
consent be obtained by the applicant from the concerned
indigenous cultural communities, local communities,
management board under Republic Act No. 7586 or private
individual or entity. The applicant shall disclose fully the
intent and scope of the bioprospecting activity in a
language and process understandable to the community.
The prior informed consent from the indigenous peoples
shall be obtained in accordance with existing laws. The
action on the bioprospecting proposal by concerned bodies
shall be made within a reasonable period.
Upon submission of the complete requirements, the
Secretary shall act on the research proposal within a
reasonable period. If the applicant is a foreign entity or
individual, a local institution should be actively involved
in the research, collection and, whenever applicable and
appropriate in the technological development of the
products derived from the biological and genetic resources.
Section 15. Collection and utilization of biological

resources for scientific research and not for commercial
purposes shall be allowed upon execution of an
undertaking/agreement with and issuance of a gratuitous
permit by the Secretary or the authorized representative:
Provided, that prior clearance from concerned bodies shall
be secured before the issuance of the gratuitous permit:
Provided, further, That the last paragraph of Section 14
shall likewise apply.
The Philippines has been a global pioneer in the adoption of
bioprospecting regulations. Executive Order No. 247,
deemed internationally as the first access to genetic resources
and benefit-sharing law, was issued after Philippine
ratification of the Convention of Biological Diversity.7h
However, this Executive Order has been criticized as follows:
1. In defining the concept of bioprospecting, E.O. 247 in
effect limited its scope to sampling and collecting
materials instead of dealing with the entire subject
matter, which also includes exploration and document-
ation of such materials. 76
2. The Prior Informed Consent requirement as carried out
pursuant to the E.O.'s Implementing Rules and
Regulations requires only notice to the affected
community of the proposed bioprospecting activity,
but not dialogue regarding the same.7
3. With the benefit sharing scheme only characterized as
to be made "equitably" but no quantified ratio is
identified, the benefits to be gained by the affected
communities is uncertain. 8
4. E.O. No. 247 imposed a difficult process for obtaining
permits that has hindered the research activities of
75 Kathryn Garforth, et. al., Overview of the National and Regional Implementation
of Access to Genetic Resources and Benefit-Sharing Measures, in Centre for
International Sustainable Development Law, 19 (3rd ed. 2005), available at:
http://www.cisdl.org/pdf/ABSJmpStudy.sm.pdf.
76 Oscar B. Zamora, The Philippines: A Bridle on Bioprospecting?, in GRAIN
(1997), http://www.grain.org/article/entries213-the-philippines-a-bridle-on-
bioprospecting.
7 Id.
Filipino scientists like those aiming to study natural

products. 9
The Wildlife Resources Conservationand ProtectionAct included
provisions that tackle the bioprospecting concerns on E.O.
No. 247,80 some of which are listed below:
1. It provided a new definition of bioprospecting as the
"research, collection and utilization of biological and
genetic resources for purposes of applying the knowledge
derived therefrom solely for commercial purposes."81
2. Affected communities through the Prior Informed Consent
requirement are entitled to bargain as to their share in the
benefits derived from the bioprospecting activity.82
3. The Guidelines of the Wildlife Act laid down "detailed
benefit-sharing provisions. ' 3
4. Instead of obtaining Commercial or Academic Research
Agreements under E.O. No. 247, the Act now requires a
Bioprospecting Undertaking permit for commercial
undertakings and a gratuitous permit for scientific
studies.84
79 Lourdes J. Cruz, Natural Products Research and Bioprospecting, in PES:

Sustainable Financing for Conservation and Development, Padilla, J.E. eL al.
eds., 118-119, (Proceedings from the National Conference-Workshop on
Payments for Environmental Services: Direct Incentives for Biodiversity
Conservationand Poverty Alleviation, Manila, March 1-2, 2005) <http://www.
wwf.org.ph/downoads/PES.pdf>
8DId., 119.
81 Id
8 Kathryn Garforth, et. al., Overview of the National and Regional Implementation
of Access to Genetic Resources and Benefit-Sharing Measures, in Centre for
International Sustainable Development Law 20 (3rd ed. 2005), available at:
http://www.cisdl.org/pdf/ABS-mpStudy-sm.pdf
83 Id.
14 Lourdes J. Cruz, Natural Products Research and Bioprospecting, in PES:
Sustainable Financing for Conservation and Development, Padilla, J.E. et. al.
eds., 119, (Proceedings from the National Conference-Workshop on
Payments for Environmental Services: Direct Incentives for Biodiversity
Conservationand Poverty Alleviation, Manila, March 1-2, 2005)
<http://www.wwf.org.plh/downloads/PES.pdf>
CHAPrER SIX
Protected Areas and Watershed Management
6.1 Environmental Situationer

Mt. Tinagong-Yaman is the legendary home of engkanto
(spirits) that protect plants, animals and waters of the forests.
For centuries, the Tribe lived within and around the thick
forests, moving from place to place doing shifting cultivation
and hunting wild animals for food. The Tribe considers the
forest as its home, and integral to the Tribe's spiritual and
social identity. Over the years, settlers from different
provinces have come to live at the edges of the forests. These
settlers befriended the Tribe, engaging in trade, including
buying portions of lands from some tribal members. The
settlers cleared some portions of the forest to plant crops.
Some areas of the mountain were not suitable for farming
because the land was rocky and inhospitable.
In recent years, scientists from the government and
international academic institutions conducted biological
surveys in Mt. Tinagong Yaman and found that the area is
rich in unique species of plants and animals. Government
scientists also discovered that the rocky areas were actually
rich in mineral deposits. This was confirmation of old folks
tales about finding gold nuggets in the rivers than ran
through the mountains.
The scientific discoveries became the basis of moves to
declare the mountain as a protected area to conserve the
biodiversity and natural beauty of the place. The local
communities and even the tribal leaders were happy about
the program to protect area. It was also recently discovered
that the area had once been declared as a forest reserve.
300
However, the news of rich mineral deposits also attracted
many investors to apply for mining permits in the area.
Suddenly there have been an influx of small-scale miners,
and geologists from large mining companies have also
visited the area to conduct tests. Many small-scale miners
have started digging and panning - and set up processing
facilities. Local communities and tribal leaders noticed that
the waters near the mining areas have become very murky;
government investigations found that the waters have
become silted and contaminated with chemicals used by the
miners.
6.2 LegalAnalysis
The framework for protecting terrestrial and aquatic
ecosystems that are considered important for biodiversity
conservation is the National Integrated Protected Areas
System.
National Integrated Protected Areas System Act
Section 5. Establishment and Extent of the System. The
establishment and operationalization of the System shall
involve the following:
a. All areas or islands in the Philippines pro-
claimed, designated or set aside, pursuant to a law,
presidential decree, presidential proclamation or
executive order as national park, game refuge, bird
and wildlife sanctuary, wilderness area, strict
nature reserve, watershed, mangrove reserve, fish
sanctuary, natural and historical landmark, pro-
tected and managed landscape/seascape as well as
identified virgin forests before the effectivity of
this Act are hereby designated as initial compo-
nents of the System. The initial components of the
System shall be governed by existing laws, rules
and regulations, not inconsistent with this Act; xxx
Section 13. Ancestral Lands and Rights Over Them.

Ancestral lands and customary rights and interest arising
shall be accorded due recognition. The DENR shall
prescribe rules and regulations to govern ancestral lands
within protected areas: Provided, That the DENR shall
have no power to evict indigenous communities from their
present occupancy nor resettle them to another area
without their consent: Provided, however, That all rules
and regulations, whether adversely affecting said commu-
nities or not, shall be subjected to notice and hearing to be
participated in by members of concerned indigenous
community.
Section 20. Prohibited Acts. Except as may be allowed by

the nature of their categories and pursuant to rules and
regulations governing the same, the following acts are
prohibited within protected areas:
a. Hunting, destroying, disturbing, or mere

possession of any plants or animals or pro-
ducts derived therefrom without a permit
from the Management Board;
b. Dumping of any waste products detrimental to
the protected area, or to the plants and animals
or inhabitants therein;
c. Use of any motorized equipment without a
permit from the Management Board;
d. Mutilating, defacing or destroying objects of
natural beauty, or objects of interest to cultural
communities (of scenic value);
e. Damaging and leaving roads and trails in a
damaged condition;
f. Squatting, mineral locating, or otherwise
occupying any land;
g. Constructing or maintaining any kind of
structure, fence or enclosures, conducting any
business enterprise without a permit;
h. Leaving in exposed or unsanitary conditions
refuse or debris, or depositing in ground or in
bodies of water; and
i. Altering, removing destroying or defacing

boundary marks or signs.
NIPAS is recognized in other environmental laws, such that

areas designated for protection are closed to other
incompatible land uses.
Mining Act
Section 19. Areas Closed to Mining Applications. Mineral
agreement or financial or technical assistance agreement
applications shall not be allowed:
a. In military and other government reservations,

except upon prior written clearance by the
government agency concerned;
b. Near or under public or private buildings,
cemeteries, archeological and historic sites,
bridges, highways, waterways, railroads,
reservoirs, dams or other infrastructure
projects, public or private works including
plantations or valuable crops, except upon
written consent of the government agency or
private entity concerned;
c. In areas covered by valid and existing mining
rights;
d. In areas expressedly prohibited by law;
e. In areas covered by small-scale miners as
defined by law unless with prior consent of the
small-scale miners, in which case a royalty
payment upon the utilization of minerals shall
be agreed upon by the parties, said royalty
forming a trust fund for the socioeconomic
development of the community concerned;
and
f. Old growth or virgin forests, proclaimed
watershed forest reserves, wilderness areas,
mangrove forests, mossy forests, national
parks provincial/municipal forests, parks,
greenbelts, game refuge and bird sanctuaries

as defined by law and in areas expressly
prohibited under the National Integrated
Protected Areas System (NIPAS) under
Republic Act No. 7586, Department
Administrative Order No. 25, series of 1992
and other laws.
DENR Memorandum Order No. 2011-04
Pursuant to Section 6 and 10(d) of Republic Act No. 7586 or
the National Integrated Protected Areas System (NIPAS)
Act of 1992, and in view of Rule 7.1 of DENR
Administrative Order No. 2008-26, the following guide-
lines are hereby issued for the compliance of all concerned:
1. The survey and processing of all public land
applications (PLAs) for titling purposes over
lands covered by proposed Proclamations for
Protected Areas submitted by the DENR to the
Office of the President are hereby declared
suspended effective upon the actual date of the
submission of the draft Proclamation by the
Office of the RED to the Central Office.
Beginning on the said date, no PLAs over
lands within these areas shall be accepted;
2. Also on the same date, the processing of appli-
cations for lease/license/ permit of any project/
activity therein shall be held in abeyance and
no new applications shall be accepted, except
for projects that are compatible with the
objectives of the NIPAS; xxx
The constant tension between use of land for conservation
and utilization is exemplified by the cases of PICOPResources
Inc. vs. Base Metals Mineral Resources Corp and MAB, and Apex
Mining v SoutheastMindanao Gold Mining (SEM). Much of the
conflict today involves what are considered 'initial
components' of the NIPAS, under Section 5(a) quoted above.
PICOP Resources Inc. vs. Base Metals

Mineral Resources Corporation, and the
Mines Adjudication Board
G.R. No. 163509, December 6,2006
xxx a portion of Banahaw Mining's mining claims85 was

located in petitioner PICOP's logging concession in
Agusan del Sur, Banahaw Mining and petitioner PICOP
entered into a Memorandum of Agreement, whereby, in
mutual recognition of each other's right to the area
concerned, petitioner PICOP allowed Banahaw Mining an
access/right of way to its mining claims.
In 1991, Banahaw Mining converted its mining claims to

applications for Mineral Production Sharing Agreements
(MPSA for brevity). Xxx
PICOP filed with the Mines Geo-Sciences Bureau (MGB),

Caraga Regional Office No. XIII an Adverse Claim and/or
Opposition to private respondent Base Metals' application
xxx
PICOP then proceeded to claim that the area should

remain forest land if the purpose of the presidential fiat
were to be followed. It stated:
Technically, the areas applied for by Base Metals

are classified as permanent forest being land of the
public domain determined to be needed for forest
purposes (Paragraph 6, Section 3 of Presidential
Decree No. 705, as amended) If these areas then are
classified and determined to be needed for forest
purpose then they should be developed and
should remain as forest lands. Identifying,
delineating and declaring them for other use or
uses defeats the purpose of the aforecited
presidential fiats. Again, if these areas would be
Later sold to Base Metals.

delineated from Oppositor's forest concession, the

forest therein would be destroyed and be lost
beyond recovery.
xxx
PICOP contends that its concession area is within the

Agusan-Surigao-Davao Forest Reserve established under
Proclamation No. 369 and is closed to mining application
citing several paragraphs of Sec. 19 of RA 7942. xxx
(f) Old growth or virgin forests, proclaimed watershed

forest reserves, wilderness areas, mangrove forests, mossy
forests, national parks, provincial/municipal forests, parks,
greenbelts, game refuge and bird sanctuaries as defined by
law in areas expressly prohibited under the National
Ingrated Protected Areas System (NIPAS) under Republic
Act No. 7586, Department Administrative Order No. 25,
series of 1992 and other laws (emphasis supplied).
xxx
Firstly, assuming that the area covered by Base Metals'

MPSA is a government reservation, defined as proclaimed
reserved lands for specific purposes other than mineral
reservations, such does not necessarily preclude mining
activities in the area. Sec. 15(b) of DAO 96-40 provides that
government reservations may be opened for mining
applications upon prior written clearance by the govern-
ment agency having jurisdiction over such reservation.
Sec. 6 of RA 7942 also provides that mining operations in

reserved lands other than mineral reservations may be
undertaken by the DENR, subject to certain limitations.
xxx
Secondly, RA 7942 does not disallow mining applications in

all forest reserves but only those proclaimed as watershed
forest reserves. There is no evidence in this case that the area
covered by Base Metals' MPSA has been proclaimed as

watershed forest reserves.
Even granting that the area covered by the MPSA is part of

the Agusan-Davao-Surigao Forest Reserve, such does not
necessarily signify that the area is absolutely closed to
mining activities. Contrary to PICOP's obvious misreading
of our decision in Apex Mining Co., Inc. v. Garcia, supra, to
the effect that mineral agreements are not allowed in the
forest reserve established under Proclamation 369, the
Court in that case actually ruled that pursuant to PD 463 as
amended by PD 1385, one can acquire mining rights within
forest reserves, such as the Agusan-Davao-Surigao Forest
Reserve, by initially applying for a permit to prospect with
the Bureau of Forest and Development and subsequently
for a permit to explore with the Bureau of Mines and
Geosciences.
Moreover, Sec. 18 RA 7942 allows mining even in
timberland or forestry subject to existing rights and
reservations.
xxx
Thirdly, PICOP failed to present any evidence that the area
covered by the MPSA is a protected wilderness area
designated as an initial component of the NIPAS pursuant
to a law, presidential decree, presidential proclamation or
executive order as required by RA 7586.
Sec. 5(a) of RA 7586 provides:

Sec. 5. Establishment and Extent of the System. -The
establishment and operationalization of the System shall
involve the following:
(a) All areas or islands in the Philippines proclaimed,

designated or set aside, pursuant to a law, presidential
decree, presidential proclamation or executive order as
national park, game refuge, bird and wildlife sanctuary,
wilderness area, strict nature reserve, watershed,
mangrove reserve, fish sanctuary, natural and historical
landmark, protected and managed landscape/seascape as
well as identified virgin forests before the effectivity of this
Act are hereby designated as initial components of the
System. The initial components of the System shall be
governed by existing laws, rules and regulations, not
inconsistent with this Act.
Although the above-cited area status and clearances,
particularly those pertaining to MPSA Nos. 012 and 013,
state that portions thereof are within the wilderness area of
PICOP, there is no showing that this supposed wilderness
area has been proclaimed, designated or set aside as such,
pursuant to a law, presidential decree, presidential
proclamation or executive order. It should be emphasized
that it is only when this area has been so designated that
Sec. 20 of RA 7586, which prohibits mineral locating within
protected areas, becomes operational.
From the foregoing, there is clearly no merit to PICOP's

contention that the area covered by Base Metals' MPSA is,
by law, closed to mining activities. xxx
Apex Mining vs. Southeast Mindanao Gold Mining (SEM)
G.R. No. 152613 & 152628, February 3,2009
RESOLUTION
Chico-Nazario, I.:
xxx
Proclamation No. 297 is in Harmony with Article XII,

Section 4, of the Constitution
At any rate, even if this Court were to consider the
arguments belatedly raised by SEM, said arguments are
not meritorious.
SEM asserts that Article XII, Section 4 of the Constitution,

bars the President from excluding forest reserves/
NATIONAL LAWS AND PouclEs I 309
reservations and proclaiming the same as mineral
reservations, since the power to de-classify them resides in
Congress.
Section 4, Article XII of the Constitution reads:
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
increased nor diminished, except by law. The
Congress shall provide, for such periods as it may
determine, measures to prohibit logging in
endangered forests and in watershed areas.
The above-quoted provision says that the area covered by

forest lands and national parks may not be expanded or
reduced, unless pursuant to a law enacted by Congress.
Clear in the language of the constitutional provision is its
prospective tenor, since it speaks in this manner:
"Congress shall as soon as possible." It is only after the
specific limits of the forest lands shall have been
determined by the legislature will this constitutional
restriction apply. SEM does not allege nor present any
evidence that Congress had already enacted a statute
determining with specific limits forest lands and national
parks. Considering the absence of such law, Proclamation
No. 297 could not have violated Section 4, Article XII of the
1987 Constitution. In PICOP Resources, Inc. v. Base Metals
Mineral Resources Corporation, the Court had the occasion
to similarly rule in this fashion:
x x x Sec. 4, Art. XII of the 1987 Constitution, on the

other hand, provides that Congress shall deter-
mine the specific limits of forest lands and national
parks, marking clearly their boundaries on the
ground. Once this is done, the area thus covered
by said forest lands and national parks may not be
expanded or reduced except also by congressional
legislation. Since Congress has yet to enact a law

determining the specific limits of the forest lands
covered by Proclamation No. 369 and marking
clearly its boundaries on the ground, there can be
no occasion that could give rise to a violation of
the constitutional provision.
Section 4, Article XII of the Constitution, addresses the

concern of the drafters of the 1987 Constitution about
forests and the preservation of national parks. This was
brought about by the drafters' awareness and fear of the
continuing destruction of this country's forests. In view of
this concern, Congress is tasked to fix by law the specific
limits of forest lands and national parks, after which the
trees in these areas are to be taken care of. Hence, these
forest lands and national parks that Congress is to delimit
through a law could be changed only by Congress.
In addition, there is nothing in the constitutional provision

that prohibits the President from declaring forest land as
an environmentally critical area and from regulating the
mining operations therein by declaring it as a mineral
reservation in order to prevent the further degradation of
the forest environment and to resolve the health and peace
and order problems that beset the area.
A closer examination of Section 4, Article XII of the
Constitution and Proclamation No. 297 reveals that there is
nothing contradictory between the two. Proclamation No.
297, a measure to attain and maintain a rational and
orderly balance between socio-economic growth and
environmental protection, jibes with the constitutional
policy of preserving and protecting the forest lands from
being further devastated by denudation. In other words,
the proclamation in question is in line with Section 4,
Article XII of the Constitution, as the former fosters the
preservation of the forest environment of the Diwalwal
area and is aimed at preventing the further degradation of
the same. These objectives are the very same reasons why
the subject constitutional provision is in place.
What is more, jurisprudence has recognized the policy of

multiple land use in our laws towards the end that the
country's precious natural resources may be rationally
explored, developed, utilized and conserved. It has been
held that forest reserves or reservations can at the same
time be open to mining operations, provided a prior
written clearance by the government agency having
jurisdiction over such reservation is obtained. In other
words, mineral lands can exist within forest reservations.
These two terms are not anti-thetical. This is made
manifest if we read Section 47 of Presidential Decree No.
705 or the Revised Forestry Code of the Philippines, which
provides:
Mining operations in forest lands shall be

regulated and conducted with due regard to
protection, development and utilization of other
surface resources. Location, prospecting, explo-
ration, utilization or exploitation of mineral
resources in forest reservations shall be governed
by mining laws, rules and regulations. (Emphasis
supplied.)
Also, Section 6 of Republic Act No. 7942 or the Mining Act
of 1995, states that mining operations in reserved lands
other than mineral reservations, such as forest
reserves/reservations, are allowed, viz:
Mining operations in reserved lands other than
mineral reservations may be undertaken by the
Department, subject to limitations as herein
provided. In the event that the Department cannot
undertake such activities, they may be undertaken
by a qualified person in accordance with the rules
and regulations promulgated by the Secretary.
(Emphasis supplied.)
Since forest reservations can be made mineral lands where

mining operations are conducted, then there is no
argument that the disputed land, which lies within a forest
reservation, can be declared as a mineral reservation as

well.
Republic Act No. 7942 Otherwise Known as the

"Philippine Mining Act of 1995," is the Applicable Law
Determined to rivet its crumbling cause, SEM then argues

that Proclamation No. 297 is invalid, as it transgressed the
statutes governing the exclusion of areas already declared
as forest reserves, such as Section 1 of Republic Act No.
3092, Section 14 of the Administrative Code of 1987,
Section 5(a) of Republic Act No. 7586,and Section 4(a) of
Republic Act No. 6657.
Citing Section 1 of Republic Act No. 3092, which provides

as follows:
Upon the recommendation of the Director of

Forestry, with the approval of the Department
Head, the President of the Philippines shall set
apart forest reserves which shall include denuded
forest lands from the public lands and he shall by
proclamation declare the establishment of such
forest reserves and the boundaries thereof, and
thereafter such forest reserves shall not be entered,
or otherwise disposed of, but shall remain
indefinitely as such for forest uses.
The President of the Philippines may, in like

manner upon the recommendation of the Director
of Forestry, with the approval of the Department
head, by proclamation, modify the boundaries of
any such forest reserve to conform with
subsequent precise survey but not to exclude any
portion thereof except with the concurrence of
Congress. (Underscoring supplied.)
SEM submits that the foregoing provision is the governing

statute on the exclusion of areas already declared as forest
reserves. Thus, areas already set aside by law as forest
reserves are no longer within the proclamation powers of
NAnONAL LAWS AND POUCES I 313
the President to modify or set aside for any other purposes
such as mineral reservation.
To bolster its contention that the President cannot

disestablish forest reserves into mineral reservations, SEM
makes reference to Section 14, Chapter 4, Title I, Book III of
the Administrative Code of 1987, which partly recites:
The President shall have the power to reserve for
settlement or public use, and for specific public
purposes, any of the lands of the public domain,
the use of which is not otherwise directed by
law. The reserved land shall thereafter remain
subject to the specific public purpose indicated
until otherwise provided by law or proclamation.
(Emphases supplied.)
SEM further contends that Section 7 of Republic Act No.
7586, which declares that the disestablishment of a
protected area shall be done by Congress, and Section 4(a)
of Republic Act No. 6657, which in turn requires a law
passed by Congress before any forest reserve can be
reclassified, militate against the validity of Proclamation
No. 297.
Proclamation No. 297, declaring a certain portion of land
located in Monkayo, Compostela Valley, with an area of
8,100 hectares, more or less, as a mineral reservation, was
issued by the President pursuant to Section 5 of Republic
Act No. 7942, also known as the "Philippine Mining Act of
1995."
Proclamation No. 297 did not modify the boundaries of the

Agusan-Davao-Surigao Forest Reserve since, as earlier
discussed, mineral reservations can exist within forest
reserves because of the multiple land use policy. The metes
and bounds of a forest reservation remain intact even if,
within the said area, a mineral land is located and
thereafter declared as a mineral reservation.
More to the point, a perusal of Republic Act No. 3092, "An

Act to Amend Certain Sections of the Revised Adminis-
trative Code of 1917," which was approved on 17 August
1961, and the Administrative Code of 1987, shows that
only those public lands declared by the President as
reserved pursuant to these two statutes are to remain
subject to the specific purpose. The tenor of the cited
provisions, namely: "the President of the Philippines shall
set apart forest reserves" and "the reserved land shall
thereafter remain," speaks of future public reservations to
be declared, pursuant to these two statutes. These provi-
sions do not apply to forest reservations earlier declared as
such, as in this case, which was proclaimed way back on 27
February 1931, by Governor General Dwight F. Davis
under Proclamation No. 369.
Over and above that, Section 5 of Republic Act No. 7942

authorizes the President to establish mineral reservations,
to wit:
Sec. 5. Mineral Reservations.-When the national
interest so requires, such as when there is a need to
preserve strategic raw materials for industries
critical to national development, or certain
minerals for scientific, cultural or ecological value,
the President may establish mineral reservations
upon the recommendation of the Director
through the Secretary. Mining operations in
existing mineral reservations and such other
reservations as may thereafter be established, shall
be undertaken by the Department or through a
contractor x x x. (Emphasis supplied.)
It is a rudimentary principle in legal hermeneutics that
where there are two acts or provisions, one of which is
special and particular and certainly involves the matter in
question, the other general, which, if standing alone,
would include the matter and thus conflict with the
special act or provision, the special act must as intended be
taken as constituting an exception to the general act or
provision, especially when such general and special acts or
provisions are contemporaneous, as the Legislature is not
to be presumed to have intended a conflict.
Hence, it has become an established rule of statutory

construction that where one statute deals with a subject in
general terms, and another deals with a part of the same
subject in a more detailed way, the two should be
harmonized if possible; but if there is any conflict, the
latter shall prevail regardless of whether it was passed
prior to the general statute. Or where two statutes are of
contrary tenor or of different dates but are of equal
theoretical application to a particular case, the one special-
ly designed therefor should prevail over the other.
It must be observed that Republic Act No. 3092, "An Act
to Amend Certain Sections of the Revised Administrative
Code of 1917," and the Administrative Code of 1987, are
general laws. Section 1 of Republic Act No. 3092 and
Section 14 of the Administrative Code of 1987 require the
concurrence of Congress before any portion of a forest
reserve can be validly excluded therefrom. These provi-
sions are broad since they deal with all kinds of exclusion
or reclassification relative to forest reserves, i.e., forest
reserve areas can be transformed into all kinds of public
purposes, not only the establishment of a mineral
reservation. Section 5 of Republic Act No. 7942 is a special
provision, as it specifically treats of the establishment of
mineral reservations only. Said provision grants the Pres-
ident the power to proclaim a mineral land as a mineral
reservation, regardless of whether such land is also an
existing forest reservation.
Sec. 5(a) of Republic Act No. 7586 provides:
Sec. 5. Establishment and Extent of the System. -The

establishment and operationalization of the System
shall involve the following:
(a) All areas or islands in the Philippines

proclaimed, designated or set aside, pursuant to a
law, presidential decree, presidential proclamation
or executive order as national park, game refuge,
bird and wildlife sanctuary, wilderness area, strict
nature reserve, watershed, mangrove reserve, fish
sanctuary, natural and historical landmark,
protected and managed landscape/seascape as well
as identified virgin forests before the effectivity of
this Act are hereby designated as initial compo-
nents of the System. The initial components of the
System shall be governed by existing laws, rules
and regulations, not inconsistent with this Act.
Glaring in the foregoing enumeration of areas comprising

the initial component of the NIPAS System under Republic
Act No. 7586 is the absence of forest reserves. Only
protected areas enumerated under said provision cannot
be modified. Since the subject matter of Proclamation No.
297 is a forest reservation proclaimed as a mineral reserve,
Republic Act No. 7586 cannot possibly be made appli-
cable. Neither can Proclamation No. 297 possibly violate
said law.
Similarly, Section 4(a) of Republic Act No. 6657 cannot be
made applicable to the instant case.
Section 4(a) of Republic Act No. 6657 reads:
All alienable and disposable lands of the public

domain devoted to or suitable for agriculture. No
reclassification of forest or mineral lands to
agricultural lands shall be undertaken after the
approval of this Act until Congress, taking into
account ecological, developmental and equity
considerations, shall have determined by law, the
specific limits of the public domain. (Under-
scoring supplied.)
Section 4(a) of Republic Act No. 6657 prohibits the
reclassification of forest or mineral lands into agricultural
NA iONAL LAWS AND POLICIES I 317
lands until Congress shall have determined by law the
specific limits of the public domain. A cursory reading of
this provision will readily show that the same is not
relevant to the instant controversy, as there has been no
reclassification of a forest or mineral land into an
agricultural land.
Furthermore, the settled rule of statutory construction is
that if two or more laws of different dates and of contrary
tenors are of equal theoretical application to a particular
case, the statute of later date must prevail being a later
expression of legislative will.
In the case at bar, there is no question that Republic Act
No. 7942 was signed into law later than Republic Act No.
3092, the Administrative Code of 1987, Republic Act No.
7586 and Republic Act No. 6657. Applying the cited
principle, the provisions of Republic Act No. 3092, the
Administrative Code of 1987, Republic Act No. 7586 and
Republic Act No. 6657 cited by SEM must yield to Section 5
of Republic Act No. 7942.
xxx
6.3 PolicyAnalysis
6.3.1 Governance
Who is responsible for managing areas designated for
conservation, and who decides on what activities may be
conducted therein? The governance issue is complicated by
the various interests and needs at the national and local
levels, which can be gleaned in the case involving the San
Mateo Landfill in the Marikina Watershed.
Province of Rizal, et al. vs. Executive Secretary, et al.

G.R. No. 129546, December 13, 2005
Chico-Nazario, J.:
At the height of the garbage crisis plaguing Metro Manila
and its environs, parts of the Marikina Watershed
Reservation were set aside by the Office of the President,
through Proclamation No. 635 dated 28 August 1995, for
use as a sanitary landfill and similar waste disposal
applications. In fact, this site, extending to more or less 18
hectares, had already been in operation since 19 February
1990 for the solid wastes of Quezon City, Marikina, San
Juan, Mandaluyong, Pateros, Pasig, and Taguig.
This is a petition filed by the Province of Rizal, the

municipality of San Mateo, and various concerned citizens
for review on certiorari of the Decision of the Court of
Appeals in CA-G.R. SP No. 41330, denying, for lack of
cause of action, the petition for certiorari,prohibition and
mandamus with application for a temporary restraining
order/writ of preliminary injunction assailing the legality
and constitutionality of Proclamation No. 635.
xxx
We hold that the San Mateo Landfill will remain

permanently closed.
xxx
We thus feel there is also the added need to reassure the

residents of the Province of Rizal that this is indeed a final
resolution of this controversy, for a brief review of the
records of this case indicates two self-evident facts. First,
the San Mateo site has adversely affected its environs,
and second, sources of water should always be protected.
As to the first point, the adverse effects of the site were

reported as early as 19 June 1989, when the Investigation
Report of the Community Environment and Natural
NAoNAL LAWSAND POLICIES 1 319
Resources Officer of DENR-IV-1 stated that the sources of

domestic water supply of over one thousand families
would be adversely affected by the dumping operations.
The succeeding report included the observation that the
use of the areas as dumping site greatly affected the
ecological balance and environmental factors of the
community. Respondent LLDA in fact informed the MMA
that the heavy pollution and risk of disease generated by
dumpsites rendered the location of a dumpsite within the
Marikina Watershed Reservation incompatible with its
program of upgrading the water quality of the Laguna
Lake.
The DENR suspended the site's ECC after investigations

revealed ground slumping and erosion had resulted from
improper development of the site. Another Investigation
Report submitted by the Regional Technical Director to the
DENR reported respiratory illnesses among pupils of a
primary school located approximately 100 meters from the
site, as well as the constant presence of large flies and
windblown debris all over the school's playground. It
further reiterated reports that the leachate treatment plant
had been eroded twice already, contaminating the nearby
creeks that were sources of potable water for the residents.
The contaminated water was also found to flow to the
Wawa Dam and Boso-boso River. which in turn empties
into Laguna de Bay.
This brings us to the second self-evident point. Water is

life, and must be saved at all costs. In Collado v. Court of
Appeals, we had occasion to reaffirm our previous
discussion in Sta. Rosa Realty Development Corporation v.
Court of Appeals, on the primordial importance of
watershed areas, thus: 'The most important product of a
watershed is water, which is one of the most important
human necessities. The protection of watersheds ensures
an adequate supply of water for future generations and the
control of flashfloods that not only damage property but
also cause loss of lives. Protection of watersheds is an
"intergenerational" responsibility that needs to be
answered now.
Three short months before Proclamation No. 635 was

passed to avert the garbage crisis, Congress had enacted
the National Water Crisis Act to "adopt urgent and
effective measures to address the nationwide water crisis
which adversely affects the health and well-being of the
population, food production, and industrialization
process. One of the issues the law sought to address was
the "protectionand conservation of watersheds."
In other words, while respondents were blandly declaring

that "the reason for the creation of the Marikina Watershed
Reservation, i.e., to protect Marikina River as the source of
water supply of the City of Manila, no longer exists," the
rest of the country was gripped by a shortage of potable
water so serious, it necessitated its own legislation.
Respondents' actions in the face of such grave

environmental consequences defy all logic. The petitioners
rightly noted that instead of providing solutions, they
have, with unmitigated callousness, worsened the
problem. It is this readiness to wreak irrevocable damage
on our natural heritage in pursuit of what is expedient that
has compelled us to rule at length on this issue. We ignore
the unrelenting depletion of our natural heritage at our
peril.
I.
THE REORGANIZATION ACT OF THE DENR DEFINES
AND LIMITS ITS POWERS OVER THE COUNTRY'S
NATURAL RESOURCES
The respondents next point out that the Marikina

Watershed Reservation, and thus the San Mateo Site, is
located in the public domain. They allege that as such,
neither the Province of Rizal nor the municipality of San
Mateo has the power to control or regulate its use since
properties of this nature belong to the national, and not to

the local governments.
It is ironic that the respondents should pursue this line of
reasoning.
In Cruz v. Secretary of Environment and NaturalResources, we

had occasion to observe that "(o)ne of the fixed and
dominating objectives of the 1935 Constitutional Conven-
tion was the nationalization and conservation of the
natural resources of the country. There was an over-
whelming sentiment in the convention in favor of the
principle of state ownership of natural resources and the
adoption of the Regalian doctrine. State ownership of
natural resources was seen as a necessary starting point to
secure recognition of the state's power to control their
disposition, exploitation, development, or utilization."
The Regalian doctrine was embodied in the 1935

Constitution, in Section 1 of Article XIII on 'Conservation
and Utilization of Natural Resources." This was reiterated
in the 1973 Constitution under Article XIV on the
"National Economy and the Patrimony of the Nation," and
reaffirmed in the 1987 Constitution in Section 2 of Article
XII on "National Economy and Patrimony," to wit:
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
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 corporations or associations at
least sixty per centum 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.
Clearly, the state is, and always has been, zealous in

preserving as much of our natural and national heritage as
it can, enshrining as it did the obligation to preserve and
protect the same within the text of our fundamental law.
It was with this objective in mind that the respondent

DENR was mandated by then President Corazon C.
Aquino, under Section 4 of Executive Order No. 192,
otherwise known as "The Reorganization Act of the
Department of Environment and Natural Resources," to be
"the primary government agency responsible for the
conservation. management development and proper use of
the country's environment and natural resources,
specifically forest and grazing lands, mineral resources,
including those in reservation and watershed areas, and
lands of the public domain. It is also responsible for the
licensing and regulation of all natural resources as may be
provided for by law in order to ensure eguitable sharing
of the benefits derived therefrom for the welfare of the
present andfuture generationsof Filipinos."
We expounded on this matter in the landmark case of

Oposa v. Factorar where we held that the right to a
balanced and healthful ecology is a fundamental legal right
that carries with it the correlative duty to refrain from
impairing the environment. This right implies, among
other things, the judicious management and conservation
of the country's resources, which duty is reposed in the
DENR under the aforequoted Section 4 of Executive Order
No. 192. Moreover, Section 3 (of E. 0. No. 192) makes the
following statement of policy:
SEC. 3. Declarationof Policy.-It is hereby declared

the policy of the State to ensure the sustainable
use. development management. renewal. and
conservation of the country's forest, mineral, land,
off-shore areas and other natural resources,
including the protection and enhancement of the
quality of the environment, and equitable access of
the different segments of the population to the
development and use of the country's natural
resources, not only for the present generation but
for future generationsas well. It is also the policy
of the state to recognize and apply a true value
system including social and environmental cost
implications relative to their utilization;
development and conservation of our natural
resources. (Emphasis ours)
This policy declaration is substantially re-stated in Title

XlV, Book IV of the Administrative Code of 1987,
specifically in Section 1 thereof which reads:
SEC. 1. Declaration of Policy.-(1) The State shall

ensure, for the benefit of the Filipino people, the
full exploration and development as well as the
judicious disposition, utilization, management,
renewal and conservation of the country's forest,
mineral, land, waters, fisheries, wildlife, off-shore
areas and other natural resources, consistent with
the necessity of maintaining a sound ecological
balance and protecting and enhancing the quality
of the environment and the objective of making the
exploration, development and utilization of such
natural resources equitably accessible to the
different segments of the present as well as future
generations.
(2) The State shall likewise recognize and apply a
true value system that takes into account social
and environmental cost implications relative to the
utilization, development and conservation of our

natural resources.
The above provision stresses "the necessity of maintaining

a sound ecological balance and protecting and enhancing
the quality of the environment." (Emphasis ours.)
In sum, the Administrative Code of 1987 and Executive

Order No. 192 entrust the DENR with the guardianshipand
safekeeping of the Marikina Watershed Reservation and our
other natural treasures. However, although the DENR, an
agency of the government, owns the Marikina Reserve and
has jurisdiction over the same, this power is not absolute, but
is defined by the declared policies of the state, and is subject to
the law and higher authority. Section 2, Title XIV, Book IV of
the Administrative Code of 1987, while specifically refer-
ring to the mandate of the DENR, makes particular
reference to the agency's being subject to law and higher
authority, thus:
SEC. 2. Mandate.-(1) The Department of Environ-

ment and Natural Resources shall be primarily
responsible for the implementation of the
foregoing policy.
(2) It shall, subject to law and higher authority,be
in charge of carrying out the State's constitutional
mandate to control and supervise the exploration,
development, utilization, and conservation of the
country's natural resources.
With great power comes great responsibility. It is the
height of irony that the public respondents have vigorous-
ly arrogated to themselves the power to control the San
Mateo site, but have deftly ignored their corresponding
responsibility as guardians and protectors of this
tormented piece of land.
NA iONAL LAws AND POLICIES I 325
II.
THE LOCAL GOVERNMENT CODE GIVES TO LOCAL
GOVERNMENT UNITS ALL THE NECESSARY POWERS
TO PROMOTE THE GENERAL WELFARE OF THEIR
INHABITANTS
The circumstances under which Proclamation No. 635 was

passed also violates Rep. Act No. 7160, or the Local
Government Code.
Contrary to the averment of the respondents, Proclamation

No. 635, which was passed on 28 August 1995, is subject to
the provisions of the Local Government Code, which was
approved four years earlier, on 10 October 1991.
Section 2(c) of the said law declares that it is the policy of

the state "to require all national agencies and offices to
conduct periodic consultations with appropriate local
government units, non-governmental and people's organi-
zations, and other concerned sectors of the community
before any project or program is implemented in their
respective jurisdictions." Likewise, Section 27 requires
prior consultations before a program shall be implemented
by government authorities and the prior approval of the
sanggunianis obtained.
During the oral arguments at the hearing for the temporary

restraining order, Director Uranza of the MMDA Solid
Waste Management Task Force declared before the Court
of Appeals that they had conducted the required consul-
tations. However, he added that "(t)his is the problem, sir,
the officials we may have been talking with at the time this
was established may no longer be incumbent and this is
our difficulty now. That is what we are trying to do now, a
continuing dialogue."
The ambivalent reply of Director Uranza was brought to

the fore when, at the height of the protest rally and
barricade along Marcos Highway to stop dump trucks
from reaching the site, all the municipal mayors of the
province of Rizal openly declared their full support for the

rally and notified the MMDA that they would oppose any
further attempt to dump garbage in their province.
The municipal mayors acted within the scope of their

powers, and were in fact fulfilling their mandate, when
they did this. Section 16 allows every local government
unit to "exercise the powers expressly granted, those neces-
sarily implied therefrom, as well as powers necessary,
appropriate, or incidental for its efficient and effective
governance, and those which are essential to the
promotion of the general welfare," which involve, among
other things, "promot(ing)health and safety, enhance(ing)
the right of the people to a balanced ecology, and
preserv(ing) the comfort and convenience of their
inhabitants."
In Lina, Jr. v. Pafio, we held that Section 2 (c), requiring
consultations with the appropriate local government units,
should apply to national government projects affecting the
environmental or ecological balance of the particular
community implementing the project. Rejecting the
petitioners' contention that Sections 2(c) and 27 of the
Local Government Code applied mandatorily in the setting
up of lotto outlets around the country, we held that:
From a careful reading of said provisions, we find

that these apply only to national programs and/or
projects which are to be implemented in a
particular local community. Lotto is neither a
program nor a project of the national government,
but of a charitable institution, the PCSO. Though
sanctioned by the national government, it is far
fetched to say that lotto falls within the
contemplation of Sections 2(c) and 27 of the Local
Government Code.
Section 27 of the Code should be read in conjunction with

Section 26 thereof. Section 26 reads:
SECTION 26. Duty of National Government
Agencies in the Maintenance of Ecological Balance.
It shall be the duty of every national agency or
government-owned or controlled corporation
authorizing or involved in the planning and
implementation of any project or program that
may cause pollution, climatic change, depletion of
non-renewable resources, loss of crop land, range-
land, or forest cover, and extinction of animal or
plant species, to consult with the local government
units, nongovernmental organizations, and other
sectors concerned and explain the goals and
objectives of the project or program, its impact
upon the people and the community in terms of
environmental or ecological balance, and the
measures that will be undertaken to prevent or
minimize the adverse effects thereof.
Thus, the projects and programs mentioned in Section 27
should be interpreted to mean projects and programs
whose effects are among those enumerated in Section 26
and 27, to wit, those that: (1) may cause pollution; (2) may
bring about climatic change; (3) may cause the depletion
of non-renewable resources; (4) may result in loss of crop
land, range-land, or forest cover; (5) may eradicate certain
animal or plant species from the face of the planet; and
(6) other projects or programs that may call for the
eviction of a particular group of people residing in the
locality where these will be implemented. Obviously,
none of these effects will be produced by the introduction
of lotto in the province of Laguna. (emphasis supplied)
We reiterated this doctrine in the recent case of Bangus Fry

Fisherfolk v. Lanzanas86 where we held that there was no
statutory requirement for the sangguniang bayan of Puerto
Galera to approve the construction of a mooring facility, as
86 Available at: http://www.supremecourt.gov.ph/jurisprdence/2005/dec2o5/

1295461tm#_ftn0.
Sections 26 and 27 are inapplicable to projects which are

not environmentally critical.
Moreover, Section 447, which enumerates the powers,

duties and functions of the municipality, grants the
sangguniangbayan the power to, among other things, "enact
ordinances, approve resolutions and appropriate funds for
the general welfare of the municipality and its inhabitants
pursuant to Section 16 of th(e) Code." These include:
(1) Approving ordinances and passing resolutions

to protect the environment and impose appro-
priate penalties for acts which endanger the
environment, such as dynamite fishing and other
forms of destructive fishing, illegal logging and
smuggling of logs, smuggling of natural resources
products and of endangered species of flora and
fauna, slash and burn farming, and such other
activities which result in pollution, acceleration
of eutrophication of rivers and lakes, or of
ecological imbalance; [Section 447 (1)(vi)]
(2) Prescribing reasonable limits and restraints

on the use of property within the jurisdiction of
the municipality, adopting a comprehensive land
use plan for the municipality, reclassifying land
within the jurisdiction of the city, subject to the
pertinent provisions of this Code, enacting
integrated zoning ordinances in consonance with
the approved comprehensive land use plan,
subject to existing laws, rules and regulations;
establishing fire limits or zones, particularly in
populous centers; and regulating the construction,
repair or modification of buildings within said fire
limits or zones in accordance with the provisions
of this Code; [Section 447 (2)(vi-ix)]
(3) Approving ordinances which shall ensure the
efficient and effective delivery of the basic services
and facilities as provided for under Section 17 of
NA'nONAL LAWS AND POLICIES I 329
this Code, and in addition to said services and
facilities, .. providing for the establishment,
maintenance, protection, and conservation of
communal forests and watersheds, tree parks,
greenbelts, mangroves, and other similar forest
development projects ....and, subject to existing
laws, establishing and providing for the
maintenance, repair and operation of an efficient
waterworks system to supply water for the
inhabitants and purifying the source of the water
supply; regulating the construction, maintenance,
repair and use of hydrants, pumps, cisterns and
reservoirs; protecting the purity and quantity of
the water supply of the municipality and, for this
purpose, extending the coverage of appropriate
ordinances over all territory within the drainage
area of said water supply and within one
hundred (100) meters of the reservoir, conduit,
canal, aqueduct, pumping station, or watershed
used in connection with the water service; and
regulating the consumption, use or wastage of
water." [Section 447 (5)(i) & (vii)]
Under the Local Government Code, therefore, two

requisites must be met before a national project that affects
the environmental and ecological balance of local
communities can be implemented: prior consultation with
the affected local communities, and prior approval of the
project by the appropriate sanggunian. Absent either of
these mandatory requirements, the project's implement-
ation is illegal.
U'.
WASTE DISPOSAL IS REGULATED BY THE

ECOLOGICAL SOLID WASTE MANAGEMENT ACT OF
2000
The respondents would have us overlook all the
abovecited laws because the San Mateo site is a very
expensive-and necessary -fait accompli. The respondents

cite the millions of pesos and hundreds of thousands of
dollars the government has already expended in its
development and construction, and the lack of any viable
alternative sites.
The Court of Appeals agreed, thus:
During the hearing on the injunction, questions

were also asked. 'What will happen if the San
Mateo Sanitary Landfill is closed? Where will the
daily collections of garbage be disposed of and
dumped?" Atty. Mendoza, one of the lawyers of
the petitioners, answered that each city/ muni-
cipality 'must take care of its own.' Reflecting on
that answer, we are troubled: will not the proli-
feration of separate open dumpsites be a more
serious health hazard (which ha(s) to be address-
ed) to the residents of the community? What with
the galloping population growth and the constrict-
ing available land area in Metro Manila? There
could be a 'mini-Smokey Mountain' in each of the
ten cities.. .comprising Metro Manila, placing in
danger the health and safety of more people.
Damage to the environment could be aggravated
by the increase in number of open dumpsites. An
integrated system of solid waste management, like
the San Mateo Sanitary Landfill, appears advisable
to a populous metropolis like the Greater Metro
Manila Area absent access to better technology.
We acknowledge that these are valid concerns. Never-

theless, the lower court should have been mindful of the
legal truism that it is the legislature, by its very nature,
which is the primary judge of the necessity, adequacy,
wisdom, reasonableness and expediency of any law.
Moreover, these concerns are addressed by Rep. Act No.

9003. Approved on 26 January 2001, 'The Ecological Solid
Waste Management Act of 2000" was enacted pursuant to
the declared policy of the state "to adopt a systematic,
comprehensive and ecological solid waste management
system which shall ensure the protection of public health
and environment, and utilize environmentally sound
methods that maximize the utilization of valuable
resources and encourage resource conservation and
recovery." It requires the adherence to a Local Government
Solid Waste Management Plan with regard to the collection
and transfer, processing, source reduction, recycling,
composting and final disposal of solid wastes, the handling
and disposal of special wastes, education and public
information, and the funding of solid waste management
projects.
The said law mandates the formulation of a National Solid

Waste Management Framework, which should include,
among other things, the method and procedure for the
phaseout and the eventual closure within eighteen months
from effectivity of the Act in case of existing open dumps
and/or sanitary landfills located within an aquifer,
groundwater reservoir or watershed area. Any landfills
subsequently developed must comply with the minimum
requirements laid down in Section 40, specifically that the
site selected must be consistent with the overall land use
plan of the local government unit, and that the site must
be located in an area where the landfill's operation will
not detrimentally affect environmentally sensitive
resources such as aauifers, groundwater reservoirs or
watershed areas.
This writes finis to any remaining aspirations respondents

may have of reopening the San Mateo Site. Having
declared Proclamation No. 635 illegal, we see no
compelling need to tackle the remaining issues raised in
the petition and the parties' respective memoranda.
A final word. Laws pertaining to the protection of the

environment were not drafted in a vacuum. Congress
passed these laws fully aware of the perilous state of both
our economic and natural wealth. It was precisely to
minimize the adverse impact humanity's actions on all

aspects of the natural world, at the same time maintaining
and ensuring an environment under which man and
nature can thrive in productive and enjoyable harmony
with each other, that these legal safeguards were put in
place. They should thus not be so lightly cast aside in the
face of what is easy and expedient.
xxx
CHAPTER SEVEN
Fisheries and Marine Resources
The Visayan Sea [bounded by Iloilo, Romblon, Masbate,
Cebu, Negros] is one of the country's richest fishing
grounds. Under the Fisheries Code of 1998 (Fish Code),
commercial fishing is not allowed within fifteen (15)
kilometers from shore. In the Visayan Sea, there is only a
small patch in the center, which is farther than fifteen (15)
kilometers from shore of the surrounding islands. Small-
scale fishermen complain of rampant commercial fishing in
the entire Visayan Sea, which they say is the cause of the
depletion of fish catch. Commercial fishing operators claim
that they are not fishing in the area, but just passing through
on their way to the fish port in Cadiz City. Commercial
fishers counter that small-scale fishermen have resorted to
illegal fishing methods [dynamite, fine mesh net] to increase
their catch - but which have caused the destruction of the
habitats and decline of fish populations. Local governments
in Iloilo and Negros Provinces have intensified enforcement
to protect their fishing grounds. Fishermen from Negros
have occasionally been caught by the bantay dagat from
Iloilo for 'illegally fishing [no permit]' in their municipal
waters. This has caused conflict among LGUs and residents
of the 2 provinces. BFAR regular closed seasons declared in
the Visayan Sea.87
87 See relevant FAOs.
333
7.2 LegalAnalysis
The Fisheries Code of 1998 provides the framework for
managing the country's fisheries resources, as well as
allocating access to fisheries among the various users. The
Constitution provides preferential access to marginal
fishermen, as well as reserves the exploitation of fisheries
exclusively to Filipinos.
Fisheries Code
Section 4. Definition of Terms
10. Commercial Fishing-the taking of fishery species by

passive or active gear for trade, business or profit beyond
subsistence or sports fishing to be further classified as:
1. Small scale commercialfishing -fishing with passive

or active gear utilizing fishing vessels of 3.1 gross
tons (GT) up to twenty (20) GT;
2. Medium scale commercial fishing-fishing utilizing
active gears and vessels of 20.1 GT; up to one
hundred fifty (150) GT; and
3. Large scale commercial fishing-fishing utilizing
active gears and vessels of more than one hundred
fifty (150) GT.
xxx
56. Municipal fisherfolk-persons who are directly or

indirectly engaged in municipal fishing and other related
fishing activities.
57. Municipal fishing-refers to fishing within municipal

waters using fishing vessels of three (3) gross tons or less,
or fishing not requiring the use of fishing vessels
58. Municipal waters-include not only streams, lakes,

inland bodies of water and tidal waters within the
municipality which are not included within the protected
areas as defined under Republic Act No. 7586 (The NIPAS

Law), public forest, timber lands, forest reserves or fishery
reserves, but also marine waters included between two (2)
lines drawn perpendicular to the general coastline from
points where the boundary lines of the municipality touch
the sea at low tide and a third line parallel with the general
coastline including offshore islands and fifteen (15)
kilometers from such coastline. Where two (2) muni-
cipalities are so situated on opposite shores that there is
less than thirty (30) kilometers of marine waters between
them, the third line shall be equally distant from the
opposite shore of the respective municipalities.
xxx
Sec. 16. Jurisdiction of the Municipal/City Governments. -

The municipal/city government shall have jurisdiction over
municipal waters as defined in this Code. The muni-
cipality/city government, in coordination with FARMC,
enact appropriate ordinances for this purpose and in
accordance with the National Fisheries Policy. The
ordinance enacted by the municipality and component city
shall be reviewed pursuant to RA 7160 by their sanggunian
of the province which has jurisdiction over the same. The
LGUs shall also enforce all fishery laws, rules and
regulations as well as valid fishery ordinances enacted by
the municipality/city councilor.
The management of contiguous fishery resources such as

bays which straddled several municipalities, cities, and
provinces, shall be done in an integrated manner and not
based on political subdivisions of municipal waters in
order to facilitate their management as single resource
systems. The LGUs which share or border such resources
may group themselves and coordinate with each other to
achieve the objectives of integrated fishery resource
management. The integrated Fisheries and Aquatic
Resource Management Councils (FARMCs) established
under Section 76 of this Code shall serve as the venues for
close collaboration among LGUs in the management of

contiguous resources.
Sec.17. Grant of fishing privileges in municipal waters.-The

duly registered fisherfolk organization/cooperatives shall
have preferences in the grant of fishery rights by the
Municipal/City Council pursuant to Section 149 of the
Local Government Code: Provided, that the in the area
where there are special agencies or offices vested with
jurisdiction over municipal water by virtue of special law
creating these agencies such as, but not limited to the
Laguna Lake Development Authority and the Palawan
Council for Sustainable Development, said offices and
agencies shall continue to grant permits for proper
management and implementation of the aforementioned
structures.
Sec.18. Users of Municipal Waters.-All fishery related
activities in municipal waters, as defined in this Code, shall
be utilized by municipal fisherfolk and their cooperatives/
organizations who are listed as such in the registry of
municipal fisherfolk.
The municipal or city government, however, may, through
its local chief executive and acting pursuant to an
appropriate ordinance, authorize or permit shall and
medium commercial fishing vessels to operate within then
point one (10.1) to fifteen (15) kilometer area from the
shoreline in municipal waters as defined herein, provided,
that all the following are met:
a. no commercial fishing in municipal waters

with depth less than seven (7) fathoms as
certified by the appropriate agency;
b. fishing activities utilizing methods and gears
that are determined to be consistent with
national polices set by the Department.
c. prior consultation, through public hearing,
with the M/CFARMC has been conducted; and
NATIoNAL LAWS AND POUClES 1 337
d. the applicant vessel as well as the ship owner,

employer, captain and crew have been
certified by the appropriate agency as not
having violated this Code, environmental laws
and related laws.
In no case shall the authorization or permit mentioned

above be granted for fishing in bays as determined by the
Department to be in an environmentally critical condition
and during closed season as provided for in Section 9 of
this Code.
xxx
CHAPTER VI. PROHIBITIONS AND PENALTIES
Sec. 86. Unauthorized Fishing or Engaging in Other

Unauthorized Fisheries Activities - No person shall exploit,
occupy, produce, breed, culture, capture or gather fish, fry
or fingerlings of any fishery species or fishery products, or
engage in any fishery activity in Philippine waters without
a license, lease or permit.
Discovery of any person in an area where he has no permit

or registration papers for a fishing vessel shall constitute a
prima facie presumption that the person and/or vessel is
engaged in unauthorized fishing: Provided, That fishing
for daily food sustenance or for leisure which is not for
commercial, occupation or livelihood purposes may be
allowed.
It shall be unlawful for any commercial fishing vessel to

fish in bays and in such other fishery management areas
which may herein-after be declared as over exploited
Any commercial fishing boat captain or the three (3)

highest officers of the boat who commit any of the above
prohibited acts upon conviction shall be punished by a fine
equivalent to the value of catch or Ten thousand pesos
(P10,000.00) whichever is higher, and imprisonment of six
(6) months, confiscation of catch and fishing gears, and

automatic revocation of license.
It shall be unlawful for any person not listed in the registry

of municipal fisherfolk to engage in any commercial
fishing activity in municipal waters. Any municipal
fisherfolk who commits such violation shall be punished
by confiscation of catch and a fine of Five hundred pesos
(P5,000.00).
xxx
Sec. 88. Fishing Through Explosives, Noxious or Poisonous

Substance, and/or Electricity. -
(1) It shall be unlawful for any person to catch,

take or gather or cause to be caught, taken or
gathered, fish or any fishery species in
Philippine waters with the use of electricity,
explosives, noxious or poisonous substance
such as sodium cyanide in the Philippine
fishery areas, which will kill, stupefy, disable
or render unconscious fish or fishery species:
Provided, That the Department, subject to
safeguards and conditions deemed necessary
and endorsement from the concerned LGUs,
may allow, for research, educational or
scientific purposes only, the use of electricity,
poisonous or noxious substances to catch, take
or gather fish or fishery species: Provided,
further, That the use of poisonous or noxious
substances to eradicate predators in fishponds
in accordance with accepted scientific practices
and without causing adverse environmental
impact in neighboring waters and grounds
shall not be construed as illegal fishing.
It will likewise be unlawful for any person,
corporation or entity to possess, deal in, sell or
in any manner dispose of, any fish or fishery
species which have been illegally caught, taken

or gathered.
The discovery of dynamite, other explosives
and chemical compounds which contain
combustible elements, or noxious or poisonous
substances, or equipment or device for electro-
fishing in any fishing vessel or in the
possession of any fisherfolk, operator, fishing
boat official or fishworker shall constitute
prima facie evidence, that the same was used
for fishing in violation of this Code. The
discovery in any fishing vessel of fish caught
or killed with the use of explosive, noxious or
poisonous substances or by electricity shall
constitute prima facie evidence that the
fisherfolk, operator, boat official or fishworker
is fishing with the use thereof.
(2) Mere possession of explosive, noxious or
poisonous substances or electrofishing devices
for illegal fishing shall be punishable by
imprisonment ranging from six (6) months to
two (2) years.
(3) Actual use of explosives, noxious or poisonous
substances or electrofishing devices for illegal
fishing shall be punishable by imprisonment
ranging from five (5) years to ten (10) years
without prejudice to the filing of separate
criminal cases when the use of the same result
to physical injury or loss of human life.
(4) Dealing in, selling, or in any manner disposing
of, for profit, illegally caught/gathered fisheries
species shall be punished by imprisonment
ranging from six (6) months to two (2) years.
(5) In all cases enumerated above, the explosives,
noxious or poisonous substances and/or
electrical devices, as well as the fishing vessels,
fishing equipment and catch shall be forfeited.
Sec.89. Use of Fine Mesh Net. -It shall be unlawful to

engage in fishing using nets with mesh smaller than that
with which may be fixed by the Department: Provided,
That the prohibition on the use of fine mesh net shall not
apply to the gathering of fry, glass eels, elvers, tabios, and
alamang and such species which by their nature are small
but already mature to be identified in the implementing
rules and regulations by the Department.
Violation of the above shall subject the offender to a fine
from Two thousand pesos (P2,000.00) to Twenty thousand
pesos (P20,000.00) or imprisonment form six (6) months to
two (2) years or both such fine and imprisonment at the
discretion of the court: Provided, That the owner/operator
of the commercial fishing vessel who violates this
provisions shall be subjected to the same penalties
provided herein: Provided, finally, That the Department is
hereby empowered to impose upon the offender an
administrative fine and/or cancel his permit or license or
both.
Sec.90. Use of Active Gear in the Municipal Waters and Bays
and Other Fishery Management Areas.- It shall be unlawful
to engage in fishing in municipal waters and in all bays as
well as other fishery management areas using active
fishing gears as defined in this Code.
Violators of the above prohibitions shall suffer the
following penalties:
(1) The boat captain and master fisherman of the
vessels who participated in the violation shall
suffer the penalty of imprisonment from two
(2) years to six (6) years;
(2) The owner/operator of the vessel shall be fined
from Two thousand pesos (P2,000.00) to
Twenty thousand pesos (P20,000.00) upon the
discretion of the court.
NATIONAL LAWS AND POUCIEs 1 341
Sec. 91. Ban on Coral Exploitation and Exportation.-It shall

be unlawful for any person or corporation to gather,
possess, sell or export ordinary precious and semi-precious
corals, whether raw or in processed form, except for
scientific or research purposes.
Violations of this provision shall be punished by
imprisonment form six (6) months to two (2) years and a
fine from Two thousand pesos (P2,000.00) to Twenty
thousand pesos (P20,000.00), or both such fine and
imprisonment, at the discretion of the court, and forfeiture
of the subject corals, including the vessel and its proper
disposition.
The confiscated corals shall either be returned to the sea or
donated to schools and museums for educational or
scientific purposes or disposed through other means.
Sec.92. Ban on Muro-Ami, Other Methods and Gear
Destructive to Coral Reefs and OtherMarine Habitat.-It shall
be unlawful for any person, natural or juridical, to fish
with gear method that destroy coral reefs, seagrass beds,
and other fishery marine life habitat as may be determined
by the Department. 'Muro-Ami" and any of its variation,
and such similar gear and methods that require diving,
other physical or mechanical acts to pound the coral reefs
and other habitat to entrap, gather or catch fish and other
fishery species are also prohibited.
The operator, boat captain, master fisherman, and recruiter
or organizer of fishworkers who violate this provision shall
suffer a penalty of two (2) years to ten (10) years
imprisonment and a fine of not less than One Hundred
Thousand Pesos (P100,000.00) to Five Hundred Thousand
Pesos (P500,000.00) or both such fine and imprisonment, at
the discretion of the court. The catch and gear used shall be
confiscated.
It is likewise unlawful for any person or corporation to
gather, sell or export white sand, silica, pebbles and other
substances which make up any marine habitat. The person
or corporation who violates this provision shall suffer a
penalty of two (2) years to ten (10) years imprisonment and
a fine of not less than One Hundred Thousand Pesos
(P100,000.00) to Five Hundred Thousand Pesos
(5000,000.00) or both such fine and imprisonment, at the
discretion of the court. The substance taken from its marine
habitat shall be confiscated.
Sec.93. Illegal Use of Superlights.-It shall be unlawful to

engage in fishing with the use of superlights in municipal
waters or in violation of the rules and regulations which
may be promulgated by the Department on the use of
superlights outside municipal waters.
Violations of this provision shall be punished by

imprisonment form six (6) months to two (2) years or a fine
of five thousand pesos (P5,000.00) per superlight, or both
such fine and imprisonment at the discretion of the courts.
The superlight, fishing gears and vessel shall be
confiscated.
Sec. 94. Conversion of Mangroves.- It shall be unlawful for

any person to convert mangroves into fishponds or for any
other purposes.
Violation of the provision of this section shall be punished

by imprisonment of six (6) years and one (1) day to twelve
(12) years and/or a fine of Eighty thousand pesos
(P80,000.00): Provided, That if the area requires rehabi-
litation or restoration as determined by the court, the
offender should also be required to restore or compensate
for the restoration of the damage.
Sec. 95. Fishing in Overfished Area and During Closed Season.

-It shall be unlawful to fish in overfished area and during
closed season.
Violation of the provision of this section shall be published

by imprisonment of six (6) moths and one (1) day to six (6)
years and/or fine of Six thousand pesos (P6,000.00) and by
forfeiture of the catch and cancellation of fishing permit or

license.
Sec. 96. Fishing in Fishery Reserves, Refuge and Sanctuaries.-

It shall be unlawful to fish in fishery areas declared by the
Department as fishery reserves, refuge and sanctuaries.
Violation of the provision of the is section shall be

punished by imprisonment of two (2) years to six (6) years
and/or fine of Two thousand pesos (P2,000.00) to Twenty
thousand pesos (P20,000.00) and by forfeiture of the catch
and the cancellation of fishing permit or license.
Sec.97. Fishing or Taking of Rare, Threatened or Endangered

Species. - It shall be unlawful to fish or take rare, threaten-
ed or endangered species as listed in the CITES and as
determined by the Department.
Violation of the provision of this section shall be published

by imprisonment of twelve (12) years to twenty (20) years
and/or a fine of One hundred and twenty thousand pesos
(120,000.00) and forfeiture of the catch, and the cancellation
of fishing permit.
Sec. 98. Capture of Sabalo and Other Breeders/Spawners.- It

shall be unlawful for any person to catch, gather, capture
or possess mature milkfish or "sabalo" and such other
breeders or spawners of other fishery species as may be
determined by the Department: Provided, That catching of
sabalo and other breeders/spawners for local breeding
purposes or scientific or research purposes may be allowed
subject to guidelines to be promulgated by the Depart-
ment.

by imprisonment of six (six) months and one (1) day to
eight (8) years and/or a fine of Eighty Thousand Pesos
(P80,000.00) and forfeiture of the catch, and fishing
equipment used and revocation of license.
Sec.99. Exportation of Breeders, Spawners, Eggs or Fry. -

Exportation of breeders, spawners, eggs or fry as prohi-
bited in this Code shall be punished by imprisonment of
eight (8) years, confiscation of the same or a fine equivalent
to double the value of the same, and revocation of the
fishing and/or export license/permit.
Sec.100. Importation or Exportation of Fish or Fishery

Species. - Any importation or exportation of fish or
fisheries species in violation of this Code shall be punished
by eight years of imprisonment, a fine of Eighty Thousand
Pesos (80,000.00) and destruction of live fishery species or
forfeiture of non-lived fishery species in favor of the
department for its proper disposition: Provided, That
violator of hits provision shall be banned from being
members or stock holders of companies currently engaged
in fisheries or companies to be created in the future, the
guidelines for which shall be promulgated by the
Department.
Sec.101. Violation of Catch Ceilings.-It shall be unlawful for

any person to fish in violation of catch ceilings as
determined by the Department. Violation of the provision
of this section shall be punished by imprisonment of six (6)
months and one (1) day to six (6) months and one (1) day
to six (6) years and/or a fine of Fifty Thousand Pesos
(P50,000.00) and forfeiture of the catch, and fishing
equipment used and revocation of license.
Sec.102. Aquatic Pollution.-Aquatic pollution, as defined

in this Code shall be unlawful.

by imprisonment of six (6) years and one (1) day to twelve
(12) years and/or a fine of Eighty thousand pesos
(80,000.00) plus an additional fine of Eight thousand pesos
(8,000.00) per day until such violation ceases and the fines
paid.
NATiONAL LAWS AND POUClES I 345
The Local Government Code also provides key regulatory

mechanisms on Fisheries, which complements the Fisheries
Code.8
Local Government Code
SEC. 149. Fishery Rentals, Fees and Charges.-(a) Muni-
cipalities shall have the exclusive authority to grant fishery
privileges in the municipal waters and impose rentals, fees
or charges therefor in accordance with the provisions of
this Section.
(b) The sangguniang bayan may:
(1) Grant fishery privileges to erect fish corrals,
oyster, mussels or other aquatic beds or
bangus fry areas, within a definite zone of
the municipal waters, as determined by it:
Provided, however, That duly registered
organizations and cooperatives of marginal
fishermen shall have the preferential right to
such fishery privileges: Provided, further,
That the sangguniang bayan may require a
public bidding in conformity with and
pursuant to an ordinance for the grant of
such privileges: Provided, finally, That in the
absence of such organizations and coopera-
tives or their failure to exercise their prefe-
rential right, other parties may participate in
the public bidding in conformity with the
above cited procedure.
(2) Grant the privilege to gather, take or catch
bangus fry, prawn fry or kawag-kawag or
fry of other species and fish from the muni-
cipal waters by nets, traps or other fishing
gears to marginal fishermen free of any
88Note that the Fisheries Code is the later law.

rental, fee, charge or any other imposition

whatsoever.
(3) Issue licenses for the operation of fishing
vessels of three (3) tons or less for which
purpose the sangguniang bayan shall pro-
mulgate rules and regulations regarding the
issuances of such licenses to qualified appli-
cants under existing laws.
Provided, however, That the sanggunian concerned shall,

by appropriate ordinance, penalize the use of explosives,
noxious or poisonous substances, electricity, muro-ami,
and other deleterious methods of fishing and prescribe a
criminal penalty therefor in accordance with the provisions
of this Code: Provided, finally, That the sanggunian
concerned shall have the authority to prosecute any
violation of the provisions of applicable fishery laws.
Under both laws, access to fisheries is allocated to municipal

and commercial fishers. However, there are many instances
of conflicts among the two stakeholder groups because of
competition over nearshore fisheries -commercial fishers
have more efficient gear, but they are banned in municipal
waters because they could easily deplete the resources to the
detriment of mostly poor municipal fishes who have less
efficient fishing gear.
7.3 Policy Analysis
The Fisheries Code was enacted primarily to ensure that

fisheries resources are sufficient to meet food security.
Sec.2. Declaration of Policy.-it is hereby declared the

policy of the State:
a. to achieve food security as the overriding

consideration in the utilization, management,
development conservation and protection of
fishery resources in order to provide the food
needs of the population. A flexible policy
towards the attainment of food security shall

be adopted in response to changes in demo-
graphic trends for fish, emerging trends in the
trade of fish and other aquatic products in
domestic and international markets, and the
law of supply and demand;
b. to limit access to the fishery and aquatic
resources of the Philippines for the exclusive
use and enjoyment of Filipino citizens;
c. to ensure the rational and sustainable develop-
ment, management and conservation of the
fishery and aquatic resources in Philippine
water including the Exclusive Economic Zone
(EEZ) and in the adjacent high seas, consistent
with the primordial objective of maintaining a
sound ecological balance, protecting and en-
hancing the quality of the environment;
d. to protect the rights of fisherfolk, especially of
the local communities with priority to
municipal fisherfolk, in the preferential use of
the municipal waters. Such preferential use,
shall be based on, but not limited to, Maxi-
mum Sustainable Yield (MSY) or Total
Allowable Catch (TAC) on the basis of
resources and ecological conditions, and shall
be consistent with our commitments under
international treaties and agreement;
e. to provide support to the fishery sector, pri-
marily to the municipal fisherfolk, including
women and youth sectors, through appro-
priate technology and research, adequate
financial, production, construction of post-
harvest facilities, marketing assistance, and
other services.
According to a 2004 paper by Luna,89 the following issues

confront Philippine marine fisheries today:
" depleted fishery resources;
" degraded coastal environment and critical fisheries
habitats;
" low catches and incomes, and dissipated resource rents;
" physical losses and reduced value of catches due to
improper post-harvest practices and inefficient market-
ing;
* inequitable distribution of benefits from resource use;
* intersectoral and intrasectoral conflicts;
* poverty among small-scale fishers; and
* inadequate systems and structures for fisheries manage-
ment.
Open access is one of the main interconnections among all
the issues identified. They recommended six critical actions
to reverse the decline in Philippine marine fisheries:
* reduction and rationalization of fishing effort;
* protection, rehabilitation and enhancement of coastal
habitats;
* improved utilization of harvests;
* enhanced local stewardship and management of
resources;
* supplemental and alternative livelihoods for fishers;
and capacity building and institutional strengthening. 90
The Marine Science Institute of the University of the
Philippines1 further identified several issues which need
tackling:
89 Luna, C.Z., Silvestre, G.T., Carreon, M.F. Ill, White, A.T. & Green, S.J.,
Sustaining PhilippineMarine Fisheries Beyond "TurbulentSeas: A Synopsis of Key
ManagementIssues and opportunities,in Department of Agriculture- Bureau of
Fisheries and Aquatic Resoures 345-358 (2004).
90I1&
1. Lingayen Gulf and Manila Bay: too many fishers and

environmental stress
One of the common features in many fishing areas is how

the varying degrees of environmental stress induced by
human impacts interact with fisheries overexploitation
(e.g., siltation together with pollution in Lingayen Gulf and
Manila Bay).92 93 The most prevalent fisheries concern is the
condition that is referred to as 'malthusian overfishing'.
This condition often related to an increasing density of
fishers' population and leads to using more efficient but
destructive fishing practices such as blastfishing." In
addition, the competition between commercial and
municipal fishing activities within municipal waters has
been consistently seen as one of the major concerns.
2. Municipal fisheries vs. commercial fisheries
Due to the overexploited state in the coastal areas and the

need to regulate fishing effort (i.e., municipal waters
within 10 to 15 km from the shore), illegal access by the
commercial fleets has been seen as a major problem in the
fisheries sector.
This social equity and uneven competition have been

considered characteristic not only in the Philippines, but
also in many other coastal fisheries of developing
countries. Thus, solutions require greater empowerment
mechanisms (e.g., community-based efforts for improved
9 P.M. Alinio, An Overview of Philippine Fisheries (undated), available at:

http://innri.unuftp.ispdf/Philippine%2OFisheries.pdf
92J.E. Padilla & A.C. Morales, Evaluation of FisheriesManagementAlternatives for
Lingayen Gulf: An Options Paper, in Studies on Lingayen Gulf, Final report of
The Philippine Environmental and Natural Resources Accounting Project
(ENRAP-Phase IV)(1997).
93 D. Pauly, T-E Chua, The Overfishing of Marine Resources: Socioeconomic
Background in Southeast Asia, in AMBIO 17:200-206 (1988).
I' D. Pauly, G.T. Silvestre & I.R. Smith, On development, fisheries and dynamite. a
brief review of tropical fisheries management, in Natural Resources Modelling
3(3): 307-329 (1989).
enforcement), which, to some extent, have been initiated

through some of the decentralization devolution
mechanisms of the Philippine local government code of
1992.
Unfortunately, the small-scale municipal fisheries sector

also requires considerable effort reductions in order to
have any significant change to mitigate for the decline of
the fisheries resources. 95 As mentioned earlier, malthusian
overexploitation, together with the marginalization of the
municipal fishers, have led them further to desperate
measures for more effective and destructive fishing
practices (e.g., blast fishing, poison fishing).
3. Capture fisheries and mariculture
Due to the expected stagnation of capture fisheries in the

coastal areas and, on the other hand, with a projected
continuous increase in population, cheap fish protein food
may be less available in future. 96 Hence, mariculture has
been seen as the logical panacea to augment the fisheries
deficit. This suggestion, however, has been wrought with
problems such as the issue of degradation of important
fisheries habitats. In the Philippines, fishpond conversion
of mangrove areas has been identified as one of the major
cause of mangrove destruction.97 Recently in the Lingayen
Gulf, the introduction of fish pens and fish cages brought
about serious problems. Aside from the problems of water
quality and fish kills due to unrequlated aquaculture
95VV Hilomen & L. Jimenez , Resource and Social assessment of Lingayen Gulf:
Capture Fisheries (2001) (unpublished report) (on file with authors).
96G. Bernacsek, Principal Fisheries Development Policy Issues for the Five-Year
Development Plan of the Philippines (1987) (unpublished conference paper)
(presented at the National Fisheries Policy Workshop, 16-20 Mar 1987,
Baguio City).
97 P.M. Alifto, C.L. Nafiola, D.G. Ochavilio & M.C. Rafiola, The Fisheries
Potential of the Kalayaan Island Group, South China Sea 219-226. (B.Morton, ed.
1998) (presented at Proc. 3rd International Conference on Marine Biology of
the South China Sea, Hong Kong, 28 Oct - 1 Nov 1996).
activities, further displacement of fishers has occurred in

addition to the unfair access arrangements in the
9
commons. 8
4. Transboundary issues: pelagic stocks and disputed

areas
A report on the innovation by the Filipinos' introduction of

the payao (a fish aggregating device) suggested that catch
rates in the Philippines may be beyond their potentials and
may also have signs of growth overfishing. 99
It also identified some recommendations on tackling the

various issues and concerns on Philippine Fisheries: 0 0°
1. Enhance capabilities of Fisheries Management councils

at all levels specially through the establishment of
National and Regional Fisheries Councils. To date,
with Republic Act 8550 (the Philippine Fisheries Code
of 1998), the Fisheries and Aquatic Resources Manage-
ment Councils (FARMCs) have been institutionalized
by law. Unfortunately, they are mainly a consultative
body and would require improved ways of making
them more effective in actual management inter-
ventions in the ground.
2. There is a need to clarify the management goals that
fisheries management programs often confuse the
management concerns that deal with intermediate
causes (e.g., overexploitation of fisheries and habitat
destruction) and those that deal with the root causes
98L.F. Verceles, L.T. McManus & P.M. Alifio, Participatory Monitoring and
Feedback System: An Important Entry Towards Sustainable Aquaculture in
Bolinao, Northern Philippines78- 87 (2001).
99 R. Ganaden, B. Stequert, Tuna Fisheries in the Philippines (1987) (presented at
the IPTP Tuna Working Group, Aug 1987, Manila, Philippines).
100G.T. Silvestre, Philippine Marine Capture Fisheries: Exploitation, Potentialand
Options for Sustainable Development 87 (International Center for Marine
Resource Development, The University of Rhode Island, Working Paper No
48,1989).
(e.g., poverty, population growth, social equity,

political economy). Aside from the clarification of these
goals and objectives, it is crucial that appropriate
stakeholders' roles and responsibilities be identified to
contribute to coordinated, integrated and comple-
mentary outcomes.
3. Pursue innovative ways of reducing fishing effort and
more effective ways of enforcement and compliance.
Considering the dire depauperate condition of the
Philippines and widespread hunger and deprivation in
its social development, controlling fishing effort
requires more than the usual command and control
monitoring, control and surveillance mechanisms of
developed states. Much of the succesful initiatives
tended to provide social pressures from the com-
munity through a changed social view of community
stewardship. A broader compliance to local and
national ordinances can be improved if political-will is
demnstrated by the local government. On the other
hand, many broad based organized community (e.g.,
through militant peoples organizations) or through
citizens watch programs known as Bantay Dagat (sea
watchers or local community coast guards) have also
been succesful. Though only documented in fewer
cases in the Philippines, some communities still assert
some of their local beliefs (akin to traditional ecological
knowledge and wisdom) as a guide for their fishing
practices. 101
4. Explore incentives for livelihood-linked programs to
sustain resource management and disincentives for
sustainable practices. Due to the broader development
concerns prevalent in developing countries, regulating
fishing as a crucial livelihood for the sustenance of
fishers requires effective incentives to shift towards
sustainable practices. Some success has been shown for
o10
Mahar Mangahas, Indigenous Coastal Resources Management: The Case of the
Hataw Fishingin Batanes,Center for Development Studies (1993).
NATIONAL LAWS AND POUClEs I 353
areas where some fishers have shifted towards some
ecotourism related activities involving marine sanc-
tuaries where resource extraction has been mini-
mized.102 In addition, it has been suggested that
resource enhancement activities involving community
stakeholders has shown some promise. Such ex-
periences in learning by doing as part their livelihood
and as stewardship responsibility creates a greater
social pressure for unsustainable practices. Reducing
product acceptance derived from unsustainable live-
lihood practices (e.g., blast fishing and poison fishing)
and as compared to more acceptable ecolabelled goods
and services also offer complementary value-added
incentives.
5. Encourage joint ventures in international waters and
consider incentives in lightly exploited international
areas. The broad Philippine fisheries experience in the
region may offer the problems of its local fisheries
resource depletion to explore lightly exploited areas in
the Pacific international waters areas with other
regional partners (e.g., Indonesia and Papua New
Guinea). Improvement of the private sector and state
interaction needs to be explored further especially in
facilitating goodwill and clarifying mutually beneficial
trade agreements.
6. Improve effectiveness of enhancement and rehabi-
litation through an ecosystem and integrated coastal
management approach. Some reseeding efforts and
mangrove enhancement initiatives have met with less
success due to the inappropriate context that they have
been undertaken. Thus sea ranching without sufficient
efforts to regulate access and area control (e.g., with a
complementary marine sanctuary area) or proper grow
out educated cooperators would not be sustainable. In
addition, enhancement areas situated in areas where
1r P.H. Vogt, The Economic Benefits of Tourism in the Marine Reer of Apo
Island, Philippines 7 (1997) (presented at the 8th International Coral Reef
Sympsosium, June 1997, Panama).
conflicts in general usage of the zones (e.g., intern-

ational ports and industrialdischarges or possible
pollution sources) would jeopardize enhancement and
rehabilitation. As shown in the example for mari-
culture, more and more fisheries management
concerns of municipalities' are now being approached
as part of its' integrated coastal development plans.
The Philippine fisheries industry comprises marine fisheries,

inland fisheries, and aquaculture. Marine fisheries can be
further divided into municipal fisheries and commercial
fisheries. Recreational fisheries have not developed in the
country.
Municipal marine fisheries operate in coastal waters within

fifteen (15) kilometers from the coastline ("municipal marine
waters"), using vessels as well as fishing without the use of
vessels. Commercial fisheries operate outside municipal
waters.
Inland fisheries operate in inland waters such as lakes,

reservoirs and rivers, including estuaries. Aquaculture
involves aquatic organisms in fresh, brackish and marine
waters.
The Philippines ranked eleventh among the top fish

producing countries in the world in 2003, with production of
2.63 million tonnes of fish, crustaceans, molluscs and aquatic
plants (including seaweed).
As an archipelagic state with over 2.2 million km of highly

productive seas, the Philippines is fortunate to have vast
fishery resources at its disposal. However, all of the
country's main fish species and marine organisms are
showing signs of overfishing.
Marine fisheries
In 2003, reported marine fisheries production was 2,169,164

tonnes: 45.38% from municipal and 54.62% from commercial
fisheries. 103
Of the eight top species caught by both municipal and

commercial fisheries, almost two-thirds were harvested by
commercial fishers compared with one-third caught by
municipal fishers. This suggests that, although the
commercial and municipal fisheries are purported to be two
distinctly different sectors, they are in fact competing directly
with each other.
Despite the continued expansion of the country's commercial

fishing fleet, total fish catch levelled off at around 1.65
million tonnes in the early 1990s. Indeed, the country had
reached the maximum economic yield from its demersal fish
stocks as early as the late 1960s, except in the offshore hard
bottoms around Palawan, Southern Sulu Sea and the central
part of the country's Pacific coast. Studies on pelagic
fisheries also indicate overfishing and declining catch per
unit effort. Exceptions are in lightly fished areas in waters off
Palawan, parts of the country's Pacific coast and some parts
of Mindanao. Such findings are supported by an observed
change in species composition, i.e. anchovies have partially
replaced sardines, scads and mackerels in the catch, an
indication of gradual stock collapse.
A major fishing ground, Lingayen Gulf, reached its

maximum sustainable yield (MSY) more than 20 years ago.
The fishery now has four times the optimum effort for the
available fish stocks. Catch rates in the gulf are only one-fifth
103 Bureau of Fisheries and Aquatic Resources, PhilippineFisheriesProfile (2003).

of what they were 15 years ago, compelling fishers to invest

more time and money in dwindling catches. 104
In some areas, not only has the volume of catch been

reduced, but also quality. For example, in Central Visayas,
there has been an overall shift in catch composition, away
from coastal pelagic to oceanic pelagic species and away
from demersal to pelagic species. In the Visayan Sea, one of
the most productive fishing grounds of the country, a major
change in composition of catch took place in the 1980s, with
coastal pelagics replacing the demersals as the most
abundant catch, and invertebrate species shifting from
shrimp-dominant to squid-dominant, reflecting a shift in the
ecosystem due to fishing pressure and a shift away from
trawling to purse seine and ring net. These changes indicate
that the Visayan Sea was exhibiting signs of overexploitation
as far back as the 1980s.105
Inlandfisheries
Based on the statistics for the period 2001-2003, inland
fisheries contribute an average of 13.3% to the aggregate
(marine and inland). In 2003, inland fisheries produced a
reported 133,292 tonnes of fish. In spite of its low quantity,
inland fisheries provides subsistence livelihood for
thousands of marginal fishermen.
104 S.J. Green, A.T. White, J.O. Flores, M.F. Carreon, & A.E. Sia, Philippine
fisheries in crisis: A Framework for Management, Coastal Resource
Management Project DENR-Cebu 77 (2003).
105 S.J. Green, J.O. Flores, J.Q. Dizon-Corrales, R.T. Martinez, D.R.M Nunal,
N.B. Armada & A.T. White, The Fisheries of Central Visayas, Philippines:
Status and Trend, Coastal Resource Management Project DENR, DA-BFAR
Cebu 159 (2004).
Inland fisheries production fell from 229,973 tonnes in 1992

to 136,347 tonnes in 2001. The reduction can be attributed to
overexploitation and increasing pollution.106
Fishermen communities in municipal areas
Municipal fisherfolk are considered the "poorest among the
poor." In 2000, households whose heads were fishers had a
significantly higher poverty incidence than households in
general. Their daily income was roughly the retail value of
two (2) kilograms of fish. Low incomes can be attributed to
declining fish catch, estimated to be about two (2) kilograms
per day, down from the twenty (20) kilograms per day that
was the average catch during the 1970s.
Households of fishers and those in the fishing industry also
had heads with relatively lower education levels compared
with households in general. Fishers' households had lower
access rates to basic necessities like safe water, sanitary
toilets and electricity than other households, and were more
likely to live in makeshift houses or were squatting. Also, the
average size of households of fishers and of those in the
fishing industry was greater than the national average. 107
According to the 2002 Census of Fisheries, there were 1.8
million municipal and commercial fishing operators. This
was a three-fold increase from the 584,000 fishing operators
recorded in 1980. Municipal fishing dominated the fishing
industry in terms of numbers of operators. In 2002, 1.78
106 PLO. Juliano,Inland fisheries and lake management: Situation, Issues and
Problems, and Remmmendations (1996) (presented during the Second
National Fisheries Workshop on Policy Planning and Industry
Development, Cavite, the Philippines).
107 D.C.Israel, Economics and Environment in the Fisheries Sector, in DA-BFAR
131-137 (q.v., 2004).
million operators (99.6%) were engaged in municipal fishing

compared with only 7,800 in commercial fishing operations.
The vast majority of municipal fishing operations (1.752

million or 98.4%) were individual operations. At 1.7 million,
male operators accounted for 94.5% of the municipal fishing
operators, with a median age of forty-one (41) years.
In 2002, out of 7,200 commercial fishing operations, 7,190

were operated by individuals, and almost all (98.6%) were
males, with a median age of 39 years.
Women also have a role in fisheries and helping in the

livelihood of the family. Their roles include: (1) fish
marketing or vending, (2) fish processing, (3) fry gathering,
(4) gear preparation, (5) fishing, (6) net mending, and (7)
fishing boat ownership and operation. 10 8
Fishermen communities in inland areas
Socio-economic data on inland fisheries communities are

limited in the literature. More data can be found on small-
scale fisherfolk in coastal communities. However, it can be
assumed that the socio-economics of coastal fishing
communities will not differ significantly from those of inland
fishing communities. 109
10 Siason, I.M. 2004. Women in fisheries in the Philippines. pp. 144-149. In:
DA-BFAR, 2004, q.v.
109 Juliano, R.O. 1999. Inland fisheries in the Philippines: Its development,
management and future. pp. 116-192. In: R.D. Guerrero III (ed). 100 Years of
Philippine fisheries and marine science 1898-1998. Philippine Council for
Aquatic and Marine Research and Development, Los Banos, Laguna, the
Philippines.
Fish Export and Import
The Philippines is an exporter as well as importer of fish and

fishery products. In 2003, the balance of trade was positive in
terms of quantity and value.
In 2003, total exports of fish and fishery products amounted

to 202,016 tonnes, valued at over US$ 525.4 million. The
products consisted mainly of fresh and processed fish,
crustaceans and mollusks. Leading fishery products were
tuna, shrimp and seaweed. The major export destinations of
tuna were Japan and the United States of America. The major
export destinations of shrimps were Japan, Spain and the
United States of America. The major export destinations for
dried seaweed were China, France, Republic of Korea and
the United States of America, while the major export
destinations for carageenan were Denmark, France and the
United States of America.
For the past several years, the Philippines has been

importing large quantities of pelagic species such as tuna
(mainly from Indonesia). Large quantities of fishmeal are
also imported (mostly from Peru and the United States of
America) for feed preparations.
Economics
In 2003, the fisheries sector had a total value of US$ 1,832

million, accounting for 2.2% of GDP. The Philippines ranked
11th among the top fish producing countries in the world for
2001, accounting for 2.2% of global production. The
Philippines is the world's largest producer of caragee-
nophyte seaweed.
However, globally in the last 20 years, the Philippines'

ranking in world aquaculture production steadily slid from
4th place in 1985 to 12th at present. From 5% of global
farmed fish supply, the Philippines now contributes only a

little over 1%of world production.
Supply & Demand

Fish demand is robust in the Philippines, with three main
uses. Domestic human consumption is by far the largest
single use (2,335,474 tonnes in 2003). The most important
species consumed are roundscad, Indian sardines, frigate
tuna, big-eyed scad, fimbriated sardines and anchovies,
which originate from marine waters and are augmented by
imports and milkfish and tilapia from aquaculture and
inland fisheries. Fish exports are the second largest use of
supply (155,129 tonnes in 2003). The main exported products
are tuna, which originate from commercial and municipal
marine fisheries, and shrimp from aquaculture. The smallest
portion of demand (332,268 tonnes in 2003) is for non-food
uses. This consists mainly of imported fishmeal for animal
feeds, and snails caught in inland waters for duck feed.
The supply divides as about 83% for human consumption
and 17% for exports and non-food uses.
Fish contributes around 22.4% of the total protein intake of
the average Filipino. It is the main source of animal protein
in the diet, contributing 56% to animal protein intake.110 The
Philippine per capita fish consumption was 28.8 kg in 2003.
Food Security
On the role of fisheries in food security in the Philippines:
"There are clear indications that fisheries quantity
production is approaching real limits to further growth.
Government of the Philippines fisheries policy should re-
110 J.Espejo-Hermes, Trends and Status of Fish Processing Technology, in DA-

BFAR 122-126 (q.v., 2004)
orient and re-focus to emphasize growth in product value

added and increase in profitability, rather than the historical
focus on quantity output. A new development climate needs
to be created which will facilitate active entrepreneurial
exploration of new markets for fish products and new export
opportunities. Parallel to this policy shift, sustainability of
domestic production needs to be achieved through effective
management in order for producers to be able to provide a
secure source of raw materials for processors and
marketers.,
Trade
The foreign trade performance of the sector for 2003
recorded a trade surplus of US$ 445 million. Total fishery
exports showed a 3.6% growth in value terms compared with
the previous year. Combined, the earnings of the top three
fishery exports (tuna, shrimp and seaweed) contributed US$
363.2 million (69.3%) to total fishery products exports of US$
524.3 million.
Significant changes in international trade policy, quality and

safety criteria have put pressure on the fish processing
industry to improve the products that are being
manufactured. The Philippines has adopted the Hazard
Analysis Critical Control Point (HACCP) system for food
safety management. The Philippines continues to face
challenges regarding access of its fishery products in
international markets.
n1 B. Bernacsek, The Role of Fisheries in Food Security in the Philippines: A

Perspective Study for the Fisheries Sector to the Year 2010 (1996) (presented
during the Second National Fisheries Workshop on Policy Planning and
Industry Development, Cavite, the Philippines).
Employment
According to the 2002 Census of Fisheries, there were
2,009,300 fishing operators and aquafarm operators.
Municipal fishing operators, commercial fishing operators
and aquafarm operators constituted 88.6%, 0.39% and 11.0%,
respectively. Estimates of the employment generated from
ancillary industries are not available, but it is accepted that
2
they provide jobs for many people."
Rural Development
Various socio-economic data indicate that the ability of the

sea to provide a cheap source of food and income for the
Filipino masses has been severely compromised. The
Philippines-one of the world's forty (4) largest fish-
producing nations-is also among the ten (10) low-income,
food-deficit countries of the world. 113 With regard to
aquaculture, its full potential for rural development has yet
to be realized.
Effectiveness of protecting critical habitats
Less than five percent of the Philippines' coral reef

ecosystems remain in pristine health, and there are fishing
grounds that contain a mere 10% of the fish stock present just
fifty (50) years ago. Most near-shore fishing is conducted by
subsistence fishers in coastal communities - a group that
represents not just a formidable threat, but the most likely
driver of an effective solution.
112 National Statistics Office (2005).

113 S.J. Green, A.T. White, J.O. Flores, M.F. Carreon, & A.E. Sia, Philippine
fisheries in crisis: A Framework for Management, Coastal Resource
Management Project DENR-Cebu 77 (2003).
As overfishing has identified as the leading threat to the

marine ecosystem, the Philippines established itself as a
world leader in marine conservation, decentralizing natural
resource management and establishing what many experts
agree are the key to successful protected areas-no-take
zones. These NTZs are marine areas where absolutely no
fishing is allowed and which-when well managed by
surrounding communities -yield greater stocks of fish to
support local livelihoods and food security long term;
preserve coral reefs on which tourism depends; and buffer
coastal areas from the negative impacts of climate change.
This, of course, requires that communities have both the will
and the way to adopt better management practices. More
than a quarter of the world's 4,700+ documented NTZs are
located in the Philippines, but many exist only on paper." 4
The study conducted by Weeks et. al." 5 indicates "that the
current extent, distribution, and size of MPAs are inadequate
to fulfill conservation objectives at this scale." It was said
that while individual MPAs are sufficient for "local-scale
fisheries objectives," they are still no substitute to a
comprehensive national MPA network "to achieve an
adequate representation of biodiversity." However, even
established large MPAs are problematic, as most of them
allow extractive activities within their boundaries, and these
extractive activities "provide little protection to marine
biodiversity." Just the same, these large MPAs do "offer an
existing commitment to the management of marine
resources."
114 Rare Conservation, Program for Sustainable Fishing in the Philippines,

http://rareconservation.org/program-sustainable-fishing-philippines (last
visited June 2012).
115 Rebecca Weeks, Garry Russ, Angel Alcala, Alan White, Effectiveness of
Marine Protected Areas in the Philippines for Biodiversity Conservation, in
Conservation Biology (Contributed Paper, 2010).
According to the results, the current percentage of coastal

municipal waters and coral reef areas covered by no-take
MPAs (approximately 0.5% and between 2.7% and 3.4%,
respectively) does not meet the prescribed legislated targets.
However, it was noted that there is scarcely any available
basis as to the pegging of the required 15% of coastal
municipal waters in no-take MPAs as mandated by the 1998
Fisheries Code. "The process was likely one of political
convenience rather than scientific endeavor. Given that 15%
of Philippine municipal waters are about twice the total coral
reef area in the country, it does not appear to be an
achievable or appropriate goal." The study offered a
hypothetical solution to "fulfill the legislated requirements
by establishing MPAs exclusively between 10 km and 15 km
offshore," but at the same time surmised that such action
would not benefit coral reef ecosystems, which are most at
threat of overexploitation. The study also introduced the
Philippine Marine Sanctuary Strategy target of "protecting
10% of reef area," although it "falls short of general
recommendations that a minimum of 20% and an optimum
of 30%-50% of area be set aside in marine reserves."
However, a count of established MPAs can only be a proper
conservation indicator if they are likewise managed
effectively. According to the Marine Protected Area Rating
System, of the 251 MPAs surveyed "only 12% are rated as
'sustained,' meaning they have a fully operational
enforcement system, management plan, and monitoring
program," [while] a further 35% are rated as 'enforced.' If
these figures are accurate, our results are optimistic
assessments of conservation effectiveness."
CHAPER EIGHT
Mineral Resources Extraction
& EnvironmentalSituationer
The Philippines is a country rich in mineral resources that
would be worth trillions of pesos if sold today (PhP 47
Trillion, according to a leader in the mining industry). These
mineral resources are located within our lands or under our
seas, both of which locations are also rich in other living or
non-living resources that sustain economic activities such as
farming, eco-tourism, and fishing. Mining operations
necessarily involve the alteration of the land or seabed, such
that people who use the land or sea for settlement and/or
livelihood are likely to be displaced by mining operations.
The lands where mineral resources are located may also have
cultural or ecological values not easily measured in monetary
terms.
The benefits derived from mining must balance its costs on
people and the environment. Compensation for losses must
be provided on top of the rightful share of the country and
local people of the income from mineral wealth.
Minerals are non-renewable resources. Therefore, mining
operations have a limited lifespan. The scale of alteration or
disturbance resulting from mining operations (spatial and
temporal) depends on the type of minerals, size of deposit,
type of technology used, economic feasibility, and similar
* This chapter is based on the Policy Brief that the author prepared from
research and consultations conducted by the Ateneo School of Government,
where the author is Dean. [Ateneo School of Government, Mining, the
Philippinesand the Future (2011).]
365
factors. The impacts on the environment and people, at any

scale, depend on unique local factors: customary traditions
and practices, uniqueness of natural ecosystems, risk of
accidents brought by natural disasters, availability of
livelihood alternatives, or the general ability of people and
ecosystems to adjust to the scale of alteration or disturbance.
The extent of alteration or disturbance resulting from mining

operations may be limited to the period of operations and
controlled to minimize its adverse impacts. However, the
impacts on the environment and on people generally last
longer than the mining operations, and may or may not be
reversible. The impacts of mining operations in the
Philippines are magnified because their scale is large
compared to the total area and population affected (often in
small islands, with many communities living in the area
intended for mining, with high risk of natural disasters).
Mining operations are either large-scale or small-scale,

depending on the perspective of regulating the mining
operator relative to the size of its operations. The policy
criteria for categorizing small- versus large-scale mining do
not always match the criteria for determining the scale of
environmental impacts or economic benefits.
The issues regarding mining as alternative to other land uses

were discussed in the Chapter on Protected Areas and
Watershed Management. In this Chapter, the focus is on the
mining industry as a pillar of the economy, its contributions
and costs.
8.2 Legal Analysis
In the Fraser Institute Policy Potential Index (PPI) in

2010/2011, the Philippines ranked 66th out of 72 countries in
conduciveness of policies to mining investments. The
country ranked low despite fiscal and other incentives
provided by the government to mining companies. Could

this be due to the lingering uncertainty and conflicts
associated with mining activities in the country? In the case
of La Bugal B 'laan, the Supreme Court extensively examined
the contribution of the mining industry and the conflicts
surrounding access to mineral resources, tracing its history
and current status. In the original decision (January 2004),
the Court ruled that the Mining Act that regulates mining
contradicted the Constitution in allowing foreign entities to
engage in activities exclusively reserved for Filipinos. The
decision was met with grave concern that the mining
industry will collapse if foreign investments leave the
country. The decision was dramatically overturned in the
Resolution of the Court issued December 2004, which held
that the Mining Act was consistent with the Constitution,
especially on the matter involving foreign participation
under the FTAA.
La Bugal-B'laan Tribal Association, Inc., vs.

Victor 0. Ramos, Secretary of (DENR), et al.
G.R. No. 127882, January 27, 2004
Carpio-Morales, J.:
The present petition for mandamus and prohibition assails

the constitutionality of Republic Act No. 7942, 5 otherwise
known as the PHILIPPINE MINING ACT OF 1995, alorg
with the Implementing Rules and Regulations issued
pursuant thereto, Department of Environment and Natural
Resources (DENR) Administrative Order 96-40, and of the
Financial and Technical Assistance Agreement (FTAA)
entered into on March 30, 1995 by the Republic of the
Philippines and WMC (Philippines), Inc. (WMCP), a
corporation organized under Philippine laws.
On July 25, 1987, then President Corazon C. Aquino issued

Executive Order (E.O.) No. 279 authorizing the DENR
Secretary to accept, consider and evaluate proposals from
foreign-owned corporations or foreign investors for
contracts or agreements involving either technical or

financial assistance for large-scale exploration, develop-
ment, and utilization of minerals, which, upon appropriate
recommendation of the Secretary, the President may
execute with the foreign proponent. In entering into such
proposals, the President shall consider the real contri-
butions to the economic growth and general welfare of the
country that will be realized, as well as the development
and use of local scientific and technical resources that will
be promoted by the proposed contract or agreement. Until
Congress shall determine otherwise, large-scale mining, for
purpose of this Section, shall mean those proposals for
contracts or agreements for mineral resources exploration,
development, and utilization involving a committed
capital investment in a single mining unit project of at least
Fifty Million Dollars in United States Currency (US
$50,000,000.00).
On March 3,1995, then President Fidel V. Ramos approved
R.A. No. 7942 to "govern the exploration, development,
utilization and processing of all mineral resources." R.A.
No. 7942 defines the modes of mineral agreements for
mining operations, outlines the procedure for their filing
and approval, assignment/transfer and withdrawal, and
fixes their terms. Similar provisions govern financial or
technical assistance agreements.
The law prescribes the qualifications of contractors and

grants them certain rights, including timber, water and
easement rights, and the right to possess explosives.
Surface owners, occupants, or concessionaires are forbid-
den from preventing holders of mining rights from
entering private lands and concession areas. A procedure
for the settlement of conflicts is likewise provided for.
The Act restricts the conditions for exploration, quarry and

other permits. It regulates the transport, sale and
processing of minerals, and promotes the development of
mining communities, science and mining technology, and
safety and environmental protection.
NAIONAL LAWS AND POUCIES 1 369
The government's share in the agreements is spelled out

and allocated, taxes and fees are imposed, incentives
granted. Aside from penalizing certain acts, the law
likewise specifies grounds for the cancellation, revocation
and termination of agreements and permits.
On April 9, 1995, 30 days following its publication on

March 10, 1995 in Malaya and Manila Times, two
newspapers of general circulation, R.A. No. 7942 took
effect. Shortly before the effectivity of R.A. No. 7942,
however, or on March 30, 1995, the President entered into
an FTAA with WMCP covering 99,387 hectares of land in
South Cotabato, Sultan Kudarat, Davao del Sur and North
Cotabato.
On August 15,1995, then DENR Secretary Victor 0. Ramos

issued DENR Administrative Order (DAO) No. 95-23, s.
1995, otherwise known as the Implementing Rules and
Regulations of R.A. No. 7942. This was later repealed by
DAO No. 96-40, s. 1996 which was adopted on December
20, 1996.
On January 10,1997, counsels for petitioners sent a letter to

the DENR Secretary demanding that the DENR stop the
implementation of R.A. No. 7942 and DAO No. 96-40,
giving the DENR fifteen days from receipt to act thereon.
The DENR, however, has yet to respond or act on
petitioners' letter.
Petitioners thus filed the present petition for prohibition

and mandamus, with a prayer for a temporary restraining
order. They allege that at the time of the filing of the
petition, 100 FTAA applications had already been filed,
covering an area of 8.4 million hectares, 64 of which
applications are by fully foreign-owned corporations
covering a total of 5.8 million hectares, and at least one by
a fully foreign-owned mining company over offshore
areas.
Petitioners claim that the DENR Secretary acted without or

in excess of jurisdiction:
x x x in signing and promulgating DENR Administrative

Order No. 96-40 implementing Republic Act No. 7942, the
latter being unconstitutional in that it allows fully foreign
owned corporations to explore, develop, utilize and exploit
mineral resources in a manner contrary to Section 2,
paragraph 4, Article XII of the Constitution;
xxx
x x x in signing and promulgating DENR Administrative

Order No. 96-40 implementing Republic Act No. 7942, the
latter being unconstitutional in that it allows priority to
foreign and fully foreign owned corporations in the
exploration, development and utilization of mineral
resources contrary to Article XII of the Constitution;
xxx
VII
x x x in recommending approval of and implementing the

Financial and Technical Assistance Agreement between the
President of the Republic of the Philippines and Western
Mining Corporation Philippines Inc. because the same is
illegal and unconstitutional.
xxx
WMCP subsequently filed a Manifestation dated

September 25, 2002 alleging that on January 23, 2001, WMC
sold all its shares in WMCP to Sagittarius Mines, Inc.
(Sagittarius), a corporation organized under Philippine
laws. WMCP was subsequently renamed "Tampakan
Mineral Resources Corporation." WMCP claims that at
least 60% of the equity of Sagittarius is owned by Filipinos

and/or Filipino-owned corporations while about 40% is
owned by Indophil Resources NL, an Australian company.
It further claims that by such sale and transfer of shares,
"WMCP has ceased to be connected in any way with
WMC."
By virtue of such sale and transfer, the DENR Secretary, by

Order of December 18, 2001, approved the transfer and
registration of the subject FTAA from WMCP to
Sagittarius. Said Order, however, was appealed by
Lepanto Consolidated Mining Co. (Lepanto) to the Office
of the President which upheld it by Decision of July 23,
2002. Its motion for reconsideration having been denied by
the Office of the President by Resolution of November 12,
2002, Lepanto filed a petition for review before the Court
of Appeals. Incidentally, two other petitions for review
related to the approval of the transfer and registration of
the FTAA to Sagittarius were recently resolved by this
Court.
It bears stressing that this case has not been rendered moot
either by the transfer and registration of the FTAA to a
Filipino-owned corporation or by the non-issuance of a
temporary restraining order or a preliminary injunction to
stay the above-said July 23, 2002 decision of the Office of
the President. The validity of the transfer remains in
dispute and awaits final judicial determination. This
assumes, of course, that such transfer cures the FTAA's
alleged unconstitutionality, on which question judgment is
reserved.
WMCP also points out that the original claimowners of the

major mineralized areas included in the WMCP FTAA,
namely, Sagittarius, Tampakan Mining Corporation, and
Southcot Mining Corporation, are all Filipino-owned
corporations, each of which was a holder of an approved
Mineral Production Sharing Agreement awarded in 1994,
albeit their respective mineral claims were subsumed in the
WMCP FTAA; and that these three companies are the
same companies that consolidated their interests in

Sagittarius to whom WMC sold its 100% equity in WMCP.
WMCP concludes that in the event that the FTAA is
invalidated, the MPSAs of the three corporations would be
revived and the mineral claims would revert to their
original claimants.
These circumstances, while informative, are hardly
significant in the resolution of this case, it involving the
validity of the FTAA, not -the possible consequences of its
invalidation.
Of the above-enumerated seven grounds cited by
petitioners, as will be shown later, only the first and the
last need be delved into; in the latter, the discussion shall
dwell only insofar as it questions the effectivity of E. 0.
No. 279 by virtue of which order the questioned FTAA was
forged.
xxx
The challenge against the constitutionality of R.A. No. 7942

and DAO No. 96-40 likewise fulfills the requisites of
justiciability. Although these laws were not in force when
the subject FTAA was entered into, the question as to their
validity is ripe for adjudication.
xxx
II
Petitioners contend that E.O. No. 279 did not take effect
because its supposed date of effectivity came after
President Aquino had already lost her legislative powers
under the Provisional Constitution.
And they likewise claim that the WMC FTAA, which was
entered into pursuant to E.O. No. 279, violates Section 2,
NATONAL LAWS AND POUCtES 1 373
Article XII of the Constitution because, among other

reasons:
(1) It allows foreign-owned companies to extend more
than mere financial or technical assistance to the State
in the exploitation, development, and utilization of
minerals, petroleum, and other mineral oils, and even
permits foreign owned companies to "operate and
manage mining activities."
(2) It allows foreign-owned companies to extend both
technical and financial assistance, instead of "either
technical or financial assistance."
To appreciate the import of these issues, a visit to the
history of the pertinent constitutional provision, the
concepts contained therein, and the laws enacted
pursuant thereto, is in order.
Section 2, Article XII reads in full:
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
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 corporations or associations at
least sixty per centum 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 nation's marine wealth

in its archipelagic waters, territorial sea, and
exclusive economic zone, and reserve its use and
enjoyment exclusively to Filipino citizens.
The Congress may, by law, allow small-scale

utilization of natural resources by Filipino citizens,
as well as cooperative fish farming, with priority to
subsistence fishermen and fish-workers in rivers,
lakes, bays, and lagoons.
The President may enter into agreements with

foreign-owned corporations involving either tech-
nical or financial assistance for large-scale explo-
ration, 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 develop-
ment and use of local scientific and technical
resources.
The President shall notify the Congress of every

contract entered into in accordance with this
provision, within thirty days from its execution.
xxx
The first sentence of Section 2 embodies the Regalian

doctrine or jura regalia. Introduced by Spain into these
Islands, this feudal concept is based on the State's power of
dominium, which is the capacity of the State to own or
acquire property.
xxx
The Regalian doctrine extends not only to land but also to
"all natural wealth that may be found in the bowels of the
earth." Spain, in particular, recognized the unique value of
natural resources, viewing them, especially minerals, as an
abundant source of revenue to finance its wars against
other nations. Mining laws during the Spanish regime
reflected this perspective.
xxx
Unlike Spain, the United States considered natural

resources as a source of wealth for its nationals and saw fit
to allow both Filipino and American citizens to explore
and exploit minerals in public lands, and to grant patents
to private mineral lands. A person who acquired
ownership over a parcel of private mineral land pursuant
to the laws then prevailing could exclude other persons,
even the State, from exploiting minerals within his
property. Thus, earlier jurisprudence held that:
A valid and subsisting location of mineral land, made and

kept up in accordance with the provisions of the statutes of
the United States, has the effect of a grant by the United
States of the present and exclusive possession of the lands
located, and this exclusive right of possession and enjoy-
ment continues during the entire life of the location. x x x.
X X X.
The discovery of minerals in the ground by one who has a

valid mineral location perfects his claim and his location
not only against third persons, but also against the
Government. x x x.
The Regalian doctrine and the American system, therefore,

differ in one essential respect. Under the Regalian theory,
mineral rights are not included in a grant of land by the
state; under the American doctrine, mineral rights are
included in a grant of land by the government.
Among the principal organic acts of the Philippines was

the Act of Congress of July 1,1902, more commonly known
as the Philippine Bill of 1902, through which the United
States Congress assumed the admiistration of the
Philippine Islands. Section 20 of said Bill reserved the
disposition of mineral lands of the public domain from
sale. Section 21 thereof allowed the free and open
exploration, occupation and purchase of mineral deposits
not only to citizens of the Philippine Islands but to those of
the United States as well xxx Section 21 also made possible
the concession (frequently styled "permit", license" or
'lease") system. This was the traditional regime imposed
by the colonial administrators for the exploitation of
natural resources in the extractive sector (petroleum, hard
minerals, timber, etc.).
Under the concession system, the concessionaire makes a
direct equity investment for the purpose of exploiting a
particular natural resource within a given area. Thus, the
concession amounts to complete control by the concessio-
naire over the country's natural resource, for it is given
exclusive and plenary rights to exploit a particular
resource at the point of extraction. In consideration for the
right to exploit a natural resource, the concessionaire either
pays rent or royalty, which is a fixed percentage of the
gross proceeds.
Later statutory enactments by the legislative bodies set up
in the Philippines adopted the contractual framework of
the concession. For instance, Act No. 2932, approved on
August 31, 1920, which provided for the exploration,
location, and lease of lands containing petroleum and other
mineral oils and gas in the Philippines, and Act No. 2719,
approved on May 14, 1917, which provided for the leasing
and development of coal lands in the Philippines, both
utilized the concession system.
xxx
The 1935 Constitution adopted the Regalian doctrine,
declaring all natural resources of the Philippines, including
mineral lands and minerals, to be property belonging to
the State. As adopted in a republican system, the medieval
concept of jura regalia is stripped of royal overtones and
ownership of the land is vested in the State.
xxx
The adoption of the principle of state ownership of the
natural resources and of the Regalian doctrine was
considered to be a necessary starting point for the plan of
nationalizing and conserving the natural resources of the
country. For with the establishment of the principle of state
ownership of the natural resources, it would not be hard to
secure the recognition of the power of the State to control
their disposition, exploitation, development or utilization.
The nationalization of the natural resources was intended

(1) to insure their conservation for Filipino posterity; (2) to
serve as an instrument of national defense, helping prevent
the extension to the country of foreign control through
peaceful economic penetration; and (3) to avoid making
the Philippines a source of international conflicts with the
consequent danger to its internal security and indepen-
dence.
The same Section 1, Article XIII also adopted the

concession system, expressly permitting the State to grant
licenses, concessions, or leases for the exploitation,
development, or utilization of any of the natural resources.
Grants, however, were limited to Filipinos or entities at
least 60% of the capital of which is owned by Filipinos.
The swell of nationalism that suffused the 1935

Constitution was radically diluted when on November
1946, the Parity Amendment, which came in the form of an
"Ordinance Appended to the Constitution," was ratified in
a plebiscite. The Amendment extended, from July 4, 1946
to July 3, 1974, the right to utilize and exploit our natural
resources to citizens of the United States and business

enterprises owned or controlled, directly or indirectly, by
citizens of the United States:
xxx
The Parity Amendment was subsequently modified by the

1954 Revised Trade Agreement, also known as the Laurel-
Langley Agreement, embodied in Republic Act No. 1355.
xxx
Victorio Mario A. Dimagiba, Chief Legal Officer of the

Bureau of Energy Development, analyzed the benefits and
drawbacks of the concession system insofar as it applied to
the petroleum industry:
Advantages of Concession. Whether it emphasizes income tax

or royalty, the most positive aspect of the concession
system is that the State's financial involvement is virtually
risk free and administration is simple and comparatively
low in cost. Furthermore, if there is a competitive
allocation of the resource leading to substantial bonuses
and/or greater royalty coupled with a relatively high level
of taxation, revenue accruing to the State under the
concession system may compare favorably with other
financial arrangements.
Disadvantages of Concession. There are, however, major

negative aspects to this system. Because the Government's
role in the traditional concession is passive, it is at a
distinct disadvantage in managing and developing policy
for the nation's petroleum resource. This is true for several
reasons. First, even though most concession agreements
contain covenants requiring diligence in operations and
production, this establishes only an indirect and passive
control of the host country in resource development.
Second, and more importantly, the fact that the host
country does not directly participate in resource manage-
ment decisions inhibits its ability to train and employ its
nationals in petroleum development. This factor could
delay or prevent the country from effectively engaging in

the development of its resources. Lastly, a direct role in
management is usually necessary in order to obtain a
knowledge of the international petroleum industry which
is important to an appreciation of the host country's
resources in relation to those of other countries.
Other liabilities of the system have also been noted:
x x x there are functional implications which give

the concessionaire great economic power arising
from its exclusive equity holding. This includes,
first, appropriation of the returns of the
undertaking, subject to a modest royalty; second,
exclusive management of the project; third, control
of production of the natural resource, such as
volume of production, expansion, research and
development; and fourth, exclusive responsibility
for downstream operations, like processing,
marketing, and distribution. In short, even if
nominally, the state is the sovereign and owner of
the natural resource being exploited, it has been
shorn of all elements of control over such natural
resource because of the exclusive nature of the
contractual regime of the concession. The
concession system, investing as it does ownership
of natural resources, constitutes a consistent
inconsistency with the principle embodied in our
Constitution that natural resources belong to the
state and shall not be alienated, not to mention the
fact that the concession was the bedrock of the
colonial system in the exploitation of natural
resources.
Eventually, the concession system failed for reasons
explained by Dimagiba:
Notwithstanding the good intentions of the

Petroleum Act of 1949, the concession system
could not have properly spurred sustained oil
exploration activities in the country, since it

assumed that such a capital-intensive, high risk
venture could be successfully undertaken by a
single individual or a small company. In effect,
concessionaires' funds were easily exhausted.
Moreover, since the concession system practically
closed its doors to interested foreign investors,
local capital was stretched to the limits. The old
system also failed to consider the highly
sophisticated technology and expertise required,
which would be available only to multinational
companies.
A shift to a new regime for the development of natural
resources thus seemed imminent.
xxx
The promulgation on December 31, 1972 of Presidential
Decree No. 87, otherwise known as The Oil Exploration
and Development Act of 1972 signaled such a
transformation. P.D. No. 87 permitted the government to
explore for and produce indigenous petroleum through
"service contracts."
'Service contracts" is a term that assumes varying
meanings to different people, and it has carried many
names in different countries, like "work contracts" in
Indonesia, "concession agreements" in Africa, "production-
sharing agreements" in the Middle East, and "participation
agreements" in Latin America. A functional definition of
"service contracts" in the Philippines is provided as
follows:
A service contract is a contractual arrangement for
engaging in the exploitation and development of
petroleum, mineral, energy, land and other natural
resources by which a government or its agency, or a
private person granted a right or privilege by the
government authorizes the other party (service contractor)
to engage or participate in the exercise of such right or the
enjoyment of the privilege, in that the latter provides
financial or technical resources, undertakes the exploitation
or production of a given resource, or directly manages the
productive enterprise, operations of the exploration and
exploitation of the resources or the disposition of
marketing or resources.
In a service contract under P.D. No. 87, service and

technology are furnished by the service contractor for
which it shall be entitled to the stipulated service fee. The
contractor must be technically competent and financially
capable to undertake the operations required in the
contract.
Financing is supposed to be provided by the Government

to which all petroleum produced belongs. In case the
Government is unable to finance petroleum exploration
operations, the contractor may furnish services, technology
and financing, and the proceeds of sale of the petroleum
produced under the contract shall be the source of funds
for payment of the service fee and the operating expenses
due the contractor. The contractor shall undertake, manage
and execute petroleum operations, subject to the
government overseeing the management of the operations.
The contractor provides all necessary services and
technology and the requisite financing, performs the
exploration work obligations, and assumes all exploration
risks such that if no petroleum is produced, it will not be
entitled to reimbursement. Once petroleum in commercial
quantity is discovered, the contractor shall operate the field
on behalf of the government.
P.D. No. 87 prescribed minimum terms and conditions for
every service contract. It also granted the contractor certain
privileges, including exemption from taxes and payment of
tariff duties, and permitted the repatriation of capital and
retention of profits abroad.
Ostensibly, the service contract system had certain

advantages over the concession regime. It has been opined,
though, that, in the Philippines, our concept of a service
contract, at least in the petroleum industry, was basically a
concession regime with a production-sharing element.
On January 17, 1973, then President Ferdinand E. Marcos

proclaimed the ratification of a new Constitution. xxx
While Section 9 of the same Article [Art. XIV] maintained

the Filipino-only policy in the enjoyment of natural
resources, it also allowed Filipinos, upon authority of the
Batasang Pambansa, to enter into service contracts with
any person or entity for the exploration or utilization of
natural resources.
Sec.9. The disposition, exploration, development, exploi-

tation, or utilization of any of the natural resources of the
Philippines shall be limited to citizens, or to corporations
or associations at least sixty per centum of which is owned
by such citizens. The Batasang Pambansa, in the national
interest, may allow such citizens, corporations or
associations to enter into service contracts for financial,
technical, management, or other forms of assistance with
any person or entity for the exploration, or utilization of
any of the natural resources. Existing valid and binding
service contracts for financial, technical, management, or
other forms of assistance are hereby recognized as such.
The concept of service contracts, according to one delegate,

was borrowed from the methods followed by India,
Pakistan and especially Indonesia in the exploration of
petroleum and mineral oils. The provision allowing such
contracts, according to another, was intended to "enhance
the proper development of our natural resources since
Filipino citizens lack the needed capital and technical
know-how which are essential in the proper exploration,
development and exploitation of the natural resources of
the country."
The original idea was to authorize the government, not

private entities, to enter into service contracts with foreign
entities. As finally approved, however, a citizen or private
entity could be allowed by the National Assembly to enter
into such service contract. The prior approval of the
National Assembly was deemed sufficient to protect the
national interest. Notably, none of the laws allowing
service contracts were passed by the Batasang Pambansa.
Indeed, all of them were enacted by presidential decree.
xxx
Thus, virtually the entire range of the country's natural

resources -from petroleum and minerals to geothermal
energy, from public lands and forest resources to fishery
products - was well covered by apparent legal authority to
engage in the direct participation or involvement of foreign
persons or corporations (otherwise disqualified) in the
exploration and utilization of natural resources through
service contracts.
xxx
After the February 1986 Edsa Revolution, Corazon C.

Aquino took the reins of power under a revolutionary
government. On March 25, 1986, President Aquino issued
Proclamation No. 3, promulgating the Provisional Consti-
tution, more popularly referred to as the Freedom Consti-
tution. By authority of the same Proclamation, the Pres-
ident created a Constitutional Commission (CONCOM) to
draft a new constitution, which took effect on the date of
its ratification on February 2, 1987.
The 1987 Constitution retained the Regalian doctrine. The

first sentence of Section 2, Article XII states: "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."
Like the 1935 and 1973 Constitutions before it, the 1987
Constitution, in the second sentence of the same provision,
prohibits the alienation of natural resources, except
agricultural lands.
The third sentence of the same paragraph is new: 'The
exploration, development and utilization of natural
resources shall be under the full control and supervision of
the State." The constitutional policy of the State's "full
control and supervision" over natural resources proceeds
from the concept of jura regalia, as well as the recognition
of the importance of the country's natural resources, not
only for national economic development, but also for its
security and national defense. Under this provision, the
State assumes "a. more dynamic role" in the exploration,
development and utilization of natural resources.
Conspicuously absent in Section 2 is the provision in the
1935 and 1973 Constitutions authorizing the State to grant
licenses, concessions, or leases for the exploration, exploi-
tation, development, or utilization of natural resources. By
such omission, the utilization of inalienable lands of public
domain through "license, concession or lease" is no longer
allowed under the 1987 Constitution.
Having omitted the provision on the concession system,
Section 2 proceeded to introduce "unfamiliar language":
The State may directly undertake such activities or it may
enter into co-production, joint venture, or production-
sharing agreements with Filipino citizens, or corporations
or associations at least sixty per centum of whose capital is
owned by such citizens.
Consonant with the State's "full supervision and control"
over natural resources, Section 2 offers the State two
"options." One, the State may directly undertake these
activities itself; or two, it may enter into co-production,
joint venture, or production-sharing agreements with
Filipino citizens, or entities at least 60% of whose capital is

owned by such citizens.
A third option is found in the third paragraph of the same
section:
The Congress may, by law, allow small-scale utilization of
natural resources by Filipino citizens, as well as
cooperative fish farming, with priority to subsistence
fishermen and fish-workers in rivers, lakes, bays, and
lagoons.
While the second and third options are limited only to
Filipino citizens or, in the case of the former, to
corporations or associations at least 60% of the capital of
which is owned by Filipinos, a fourth allows the
participation of foreign-owned corporations. The fourth
and fifth paragraphs of Section 2 provide:
The President may enter into agreements with foreign-
owned corporations 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 accordance with this provision, within
thirty days from its execution.
Although Section 2 sanctions the participation of foreign-
owned corporations in the exploration, development, and
utilization of natural resources, it imposes certain limit-
ations or conditions to agreements with such corporations.
First, the parties to FrAAs. Only the President, in behalf of
the State, may enter into these agreements, and only with
corporations. By contrast, under the 1973 Constitution, a
Filipino citizen, corporation or association may enter into a

service contract with a "foreign person or entity."
Second, the size of the activities: only large-scale

exploration, development, and utilization is allowed. The
term "large-scale usually refers to very capital-intensive
activities."
Third, the natural resources subject of the activities is

restricted to minerals, petroleum and other mineral oils,
the intent being to limit service contracts to those areas
where Filipino capital may not be sufficient.
Fourth, consistency with the provisions of statute. The

agreements must be in accordance with the terms and
conditions provided by law.
Fifth, Section 2 prescribes certain standards for entering

into such agreements. The agreements must be based on
real contributions to economic growth and general welfare
of the country.
Sixth, the agreements must contain rudimentary stipu-

lations for the promotion of the development and use of
local scientific and technical resources.
Seventh, the notification requirement. The President shall

notify Congress of every financial or technical assistance
agreement entered into within thirty days from its
execution.
Finally, the scope of the agreements. While the 1973

Constitution referred to "service contracts for financial,
technical, management, or other forms of assistance" the
1987 Constitution provides for "agreements... involving
either financial or technical assistance." It bears noting that
the phrases "service contracts" and "management or other
forms of assistance" in the earlier constitution have been
omitted.
By virtue of her legislative powers under the Provisional

Constitution, President Aquino, on July 10, 1987, signed
into law E.O. No. 211 prescribing the interim procedures in
the processing and approval of applications for the
exploration, development and utilization of minerals. The
omission in the 1987 Constitution of the term "service
contracts" notwithstanding, the said E.O. still referred to
them in Section 2 thereof:
Sec.2. Applications for the exploration, develop-

ment and utilization of mineral resources, inclu-
ding renewal applications and applications for
approval of operating agreements and mining
service contracts, shall be accepted and processed
and may be approved x x x. [Emphasis supplied.]
The same law provided in its Section 3 that the "process-

ing, evaluation and approval of all mining applications ...
governed by Presidential Decree No. 463, as amended,
other existing mining laws, and their implementing rules
and regulations .......
As earlier stated, on the 25th also of July 1987, the
President issued E.O. No. 279 by authority of which the
subject WMCP FTAA was executed on March 30,1995.
On March 3, 1995, President Ramos signed into law R.A.
No. 7942. Section 15 thereof declares that the Act "shall
govern the exploration, development, utilization, and
processing of all mineral resources." Such declaration
notwithstanding, R.A. No. 7942 does not actually cover all
the modes through which the State may undertake the
exploration, development, and utilization of natural
resources.
The State, being the owner of the natural resources, is

accorded the primary power and responsibility in the
exploration, development and utilization thereof. As such,
it may undertake these activities through four modes:
(1) The State may directly undertake such activities.

(2) The State may enter into co-production, joint venture
or production-sharing agreements with Filipino
citizens or qualified corporations.
(3) Congress may, by law, allow small-scale utilization of
natural resources by Filipino citizens.
(4) For the large-scale exploration, development and
utilization of minerals, petroleum and other mineral
oils, the President may enter into agreements with
foreign-owned corporations involving technical or
financial assistance.
Except to charge the Mines and Geosciences Bureau of the
DENR with performing researches and surveys, and a
passing mention of government-owned or controlled
corporations, R.A. No. 7942 does not specify how the State
should go about the first mode. The third mode, on the
other hand, is governed by Republic Act No. 7076 (the
People's Small-Scale Mining Act of 1991) and other
pertinent laws. R.A. No. 7942 primarily concerns itself with
the second and fourth modes.
Mineral production sharing, co-production and joint
venture agreements are collectively classified by R.A. No.
7942 as "mineral agreements." The Government
participates the least in a mineral production sharing
agreement (MPSA). In an MPSA, the Government grants
the contractor the exclusive right to conduct mining
operations within a contract area and shares in the gross
output. The MPSA contractor provides the financing,
technology, management and personnel necessary for the
agreement's implementation. The total government share
in an MPSA is the excise tax on mineral products under
Republic Act No. 7729, amending Section 151(a) of the
National Internal Revenue Code, as amended.
In a co-production agreement (CA), the Government
provides inputs to the mining operations other than the
mineral resource, while in a joint venture agreement OVA),
where the Government enjoys the greatest participation,
the Government and the JVA contractor organize a

company with both parties having equity shares. Aside
from earnings in equity, the Government in a JVA is also
entitled to a share in the gross output. The Government
may enter into a CA or JVA with one or more contractors.
The Government's share in a CA or JVA is set out in
Section 81 of the law:
The share of the Government in co-production and
joint venture agreements shall be negotiated by the
Government and the contractor taking into
consideration the: (a) capital investment of the
project, (b) the risks involved, (c) contribution of
the project to the economy, and (d) other factors
that will provide for a fair and equitable sharing
between the Government and the contractor. The
Government shall also be entitled to
compensations for its other contributions which
shall be agreed upon by the parties, and shall
consist, among other things, the contractor's
income tax, excise tax, special allowance,
withholding tax due from the contractor's foreign
stockholders arising from dividend or interest
payments to the said foreign stockholders, in case
of a foreign national and all such other taxes,
duties and fees as provided for under existing
laws.
All mineral agreements grant the respective contractors the
exclusive right to conduct mining operations and to extract
all mineral resources found in the contract area. A
"qualified person" may enter into any of the mineral
agreements with the Government. A "qualified person"f is
any citizen of the Philippines with capacity to contract, or a
corporation, partnership, association, or cooperative
organized or authorized for the purpose of engaging in
mining, with technical and financial capability to
undertake mineral resources development and duly
registered in accordance with law at least sixty per centum
(60%) of the capital of which is owned by citizens of the

Philippines x x x.
The fourth mode involves "financial or technical assistance

agreements." An FTAA is defined as "a contract involving
financial or technical assistance for large-scale exploration,
development, and utilization of natural resources." Any
qualified person with technical and financial capability to
undertake large-scale exploration, development, and
utilization of natural resources in the Philippines may
enter into such agreement directly with the Government
through the DENR. For the purpose of granting an FTAA,
a legally organized foreign-owned corporation (any
corporation, partnership, association, or cooperative duly
registered in accordance with law in which less than 50%
of the capital is owned by Filipino citizens) is deemed a
"qualified person."
Other than the difference in contractors' qualifications, the

principal distinction between mineral agreements and
FTAAs is the maximum contract area to which a qualified
person may hold or be granted. "Large-scale" under R.A.
No. 7942 is determined by the size of the contract area, as
opposed to the amount invested (US $50,000,000.00), which
was the standard under E.O. 279.
Like a CA or a JVA, an FTAA is subject to negotiation. The

Government's contributions, in the form of taxes, in an
FTAA is identical to its contributions in the two mineral
agreements, save that in an FTAA:
The collection of Government share in financial or

technical assistance agreement shall commence after the
financial or technical assistance agreement contractor has
fully recovered its pre-operating expenses, exploration,
and development expenditures, inclusive.
THE CONSTITUTIONALITY OF THE WMCP FTAA
Petitioners submit that, in accordance with the text of

Section 2, Article XII of the Constitution, FTAAs should be
limited to "technical or financial assistance" only. They

observe, however, that, contrary to the language of the
Constitution, the WMCP FTAA allows WMCP, a fully
foreign-owned mining corporation, to extend more than
mere financial or technical assistance to the State, for it
permits WMCP to manage and operate every aspect of the
mining activity.
Petitioners' submission is well-taken. It is a cardinal rule in

the interpretation of constitutions that the instrument must
be so construed as to give effect to the intention of the
people who adopted it. This intention is to be sought in the
constitution itself, and the apparent meaning of the words
is to be taken as expressing it, except in cases where that
assumption would lead to absurdity, ambiguity, or
contradiction. What the Constitution says according to the
text of the provision, therefore, compels acceptance and
negates the power of the courts to alter it, based on the
postulate that the framers and the people mean what they
say. Accordingly, following the literal text of the
Constitution, assistance accorded by foreign-owned
corporations in the large-scale exploration, development,
and utilization of petroleum, minerals and mineral oils
should be limited to "technical" or "financial" assistance
only.
WMCP nevertheless submits that the word "technical" in

the fourth paragraph of Section 2 of E.O. No. 279
encompasses a "broad number of possible services,"
perhaps, "scientific and/or technological in basis." It thus
posits that it may also well include "the area of
management or operations ... so long as such assistance
requires specialized knowledge or skills, and are related to
the exploration, development and utilization of mineral
resources."
This Court is not persuaded. As priorly pointed out, the

phrase "management or other forms of assistance" in the
1973 Constitution was deleted in the 1987 Constitution,
which allows only "technical or financial assistance." Casus
omisus pro omisso habendus est. A person, object or thing

omitted from an enumeration must be held to have been
omitted intentionally. As will be shown later, the
management or operation of mining activities by foreign
contractors, which is the primary feature of service
contracts, was precisely the evil that the drafters of the
1987 Constitution sought to eradicate.
Respondents insist that "agreements involving technical or
financial assistance" is just another term for service
contracts. They contend that the proceedings of the
CONCOM indicate "that although the terminology 'service
contract' was avoided [by the Constitution], the concept it
represented was not." They add that "[the concept is
embodied in the phrase 'agreements involving financial or
technical assistance."' xxx
This Court is likewise not persuaded.
As earlier noted, the phrase "service contracts" has been
deleted in the 1987 Constitution's Article on National
Economy and Patrimony. If the CONCOM intended to
retain the concept of service contracts under the 1973
Constitution, it could have simply adopted the old
terminology ("service contracts") instead of employing
involving either
new and unfamiliar terms ("agreements ...
technical or financial assistance"). Such a difference
between the language of a provision in a revised consti-
tution and that of a similar provision in the preceding
constitution is viewed as indicative of a difference in
purpose. If, as respondents suggest, the concept of
"technical or financial assistance" agreements is identical to
that of "service contracts," the CONCOM would not have
bothered to fit the same dog with a new collar. To uphold
respondents' theory would reduce the first to a mere
euphemism for the second and render the change in
phraseology meaningless.
An examination of the reason behind the change confirms

that technical or financial assistance agreements are not
synonymous to service contracts.
[T]he Court in construing a Constitution should bear in

mind the object sought to be accomplished by its adoption,
and the evils, if any, sought to be prevented or remedied.
A doubtful provision will be examined in light of the
history of the times, and the condition and circumstances
under which the Constitution was framed. The object is to
ascertain the reason which induced the framers of the
Constitution to enact the particular provision and the
purpose sought to be accomplished thereby, in order to
construe the whole as to make the words consonant to that
reason and calculated to effect that purpose.
xxx
WMCP cites Opinion No. 75, s. 1987, and Opinion No. 175,
s. 1990 of the Secretary of Justice, expressing the view that
a financial or technical assistance agreement 'Isno
different in concept" from the service contract allowed
under the 1973 Constitution. This Court is not, however,
bound by this interpretation. When an administrative or
executive agency renders an opinion or issues a statement
of policy, it merely interprets a pre-existing law; and the
administrative interpretation of the law is at best advisory,
for it is the courts that finally determine what the law
means.
In any case, the constitutional provision allowing the

President to enter into FTAAs with foreign-owned
corporations is an exception to the rule that participation in
the nation's natural resources is reserved exclusively to
Filipinos. Accordingly, such provision must be construed
strictly against their enjoyment by non-Filipinos. As
Commissioner Villegas emphasized, the provision is "very
restrictive." Commissioner Noledo also remarked that
"entering into service contracts is an exception to the rule
on protection of natural resources for the interest of the
nation and, therefore, being an exception, it should be

subject, whenever possible, to stringent rules." Indeed,
exceptions should be strictly but reasonably construed;
they extend only so far as their language fairly warrants
and all doubts should be resolved in favor of the general
provision rather than the exception.
With the foregoing discussion in mind, this Court finds

that R.A. No. 7942 is invalid insofar as said Act authorizes
service contracts. Although the statute employs the phrase
"financial and technical agreements" in accordance with
the 1987 Constitution, it actually treats these agreements as
service contracts that grant beneficial ownership to foreign
contractors contrary to the fundamental law.
Section 33, which is found under Chapter VI (Financial or

Technical Assistance Agreement) of R.A. No. 7942 states:
SEC. 33. Eligibility.-Any qualified person with

technical and financial capability to undertake
large-scale exploration, development, and utili-
zation of mineral resources in the Philippines may
enter into a financial or technical assistance
agreement directly with the Government through
the Department.
"Exploration," as defined by R.A. No. 7942, means the

searching or prospecting for mineral resources by
geological, geochemical or geophysical surveys, remote
sensing, test pitting, trending, drilling, shaft sinking,
tunneling or any other means for the purpose of
determining the existence, extent, quantity and quality
thereof and the feasibility of mining them for profit.
A legally organized foreign-owned corporation may be

granted an exploration permit, which vests it with the right
to conduct exploration for all minerals in specified areas,
i.e., to enter, occupy and explore the same. Eventually, the
foreign-owned corporation, as such permittee, may apply
for a financial and technical assistance agreement.
"Development" is the work undertaken to explore and

prepare an ore body or a mineral deposit for mining,
including the construction of necessary infrastructure and
related facilities.
"Utilization" "means the extraction or disposition of

minerals." A stipulation that the proponent shall dispose of
the minerals and byproducts produced at the highest price
and more advantageous terms and conditions as provided
for under the implementing rules and regulations is
required to be incorporated in every FTAA.
A foreign-owned/-controlled corporation may likewise be

granted a mineral processing permit. "Mineral processing"
is the milling, beneficiation or upgrading of ores or
minerals and rocks or by similar means to convert the same
into marketable products.
An FTAA contractor makes a warranty that the mining

operations shall be conducted in accordance with the
provisions of R.A. No. 7942 and its implementing rules and
for work programs and minimum expenditures and
commitments. And it obliges itself to furnish the
Government records of geologic, accounting, and other
relevant data for its mining operation.
"Mining operation," as the law defines it, means mining

activities involving exploration, feasibility, development,
utilization, and processing.
The underlying assumption in all these provisions is that

the foreign contractor manages the mineral resources, just
like the foreign contractor in a service contract.
Furthermore, Chapter XII of the Act grants foreign

contractors in FTAAs the same auxiliary mining rights that
it grants contractors in mineral agreements (MPSA, CA
and JV). Parenthetically, Sections 72 to 75 use the term
"contractor," without distinguishing between FTAA and
mineral agreement contractors. And so does "holders of
mining rights" in Section 76. A foreign contractor may even
convert its FTAA into a mineral agreement if the economic

viability of the contract area is found to be inadequate to
justify large-scale mining operations, provided that it
reduces its equity in the corporation, partnership,
association or cooperative to forty percent (40%).
Finally, under the Act, an FTAA contractor warrants that it

"has or has access to all the financing, managerial, and
technical expertise ...." This suggests that an FTAA
contractor is bound to provide some management
assistance - a form of assistance that has been eliminated
and, therefore, proscribed by the present Charter.
By allowing foreign contractors to manage or operate all

the aspects of the mining operation, the above-cited
provisions of R.A. No. 7942 have in effect conveyed
beneficial ownership over the nation's mineral resources to
these contractors, leaving the State with nothing but bare
title thereto.
Moreover, the same provisions, whether by design or

inadvertence, permit a circumvention of the consti-
tutionally ordained 60%-40% capitalization requirement
for corporations or associations engaged in the
exploitation, development and utilization of Philippine
natural resources.
In sum, the Court finds the following provisions of R.A.

No. 7942 to be violative of Section 2, Article XI of the
Constitution:
(1)The proviso in Section 3 (aq), which defines

"qualified person," to wit:
Provided, That a legally organized foreign-

owned corporation shall be deemed a
qualified person for purposes of granting
an exploration permit, financial or
technical assistance agreement or mineral
processing permit.
NATIONAL LAWS AND POUClES 397
(2) Section 23, which specifies the rights and

obligations of an exploration permittee, insofar
as said section applies to a financial or
technical assistance agreement,
(3) Section 33, which prescribes the eligibility of a
contractor in a financial or technical assistance
agreement;
(4) Section 35, which enumerates the terms and
conditions for every financial or technical
assistance agreement;
(5) Section 39, which allows the contractor in a
financial and technical assistance agreement to
convert the same into a mineral production-
sharing agreement;
(6) Section 56, which authorizes the issuance of a
mineral processing permit to a contractor in a
financial and technical assistance agreement;
The following provisions of the same Act are likewise void

as they are dependent on the foregoing provisions and
cannot stand on their own:
(1) Section 3(g), which defines the term "con-
tractor," insofar as it applies to a financial or
technical assistance agreement.
Section 34, which prescribes the maximum contract
area in a financial or technical assistance agree-
ments;
Section 36, which allows negotiations for financial
or technical assistance agreements;
Section 37, which prescribes the procedure for
filing and evaluation of financial or technical
assistance agreement proposals;
Section 38, which limits the term of financial or
technical assistance agreements;
Section 40, which allows the assignment or transfer

of financial or technical assistance agreements;
Section 41, which allows the withdrawal of the
contractor in an FTAA;
The second and third paragraphs of Section 81,
which provide for the Government's share in a
financial and technical assistance agreement; and
Section 90, which provides for incentives to
contractors in FTAAs insofar as it applies to said
contractors;
When the parts of the statute are so mutually
dependent and connected as conditions, consi-
derations, inducements, or compensations for each
other, as to warrant a belief that the legislature
intended them as a whole, and that if all could not
be carried into effect, the legislature would not
pass the residue independently, then, if some parts
are unconstitutional, all the provisions which are
thus dependent, conditional, or connected, must
fall with them.
There can be little doubt that the WMCP FTAA itself is a
service contract.
Section 1.3 of the WMCP FTAA grants WMCP "the
exclusive right to explore, exploit, utilise[,] process and
dispose of all Minerals products and by-products thereof
that may be produced from the Contract Area." The FTAA
also imbues WMCP with the following rights:
(b) to extract and carry away any Mineral samples
from the Contract area for the purpose of
conducting tests and studies in respect thereof;
(c) to determine the mining and treatment
processes to be utilized during the Development/
Operating Period and the project facilities to be
constructed during the Development and

Construction Period;
(d) have the right of possession of the Contract

Area, with full right of ingress and egress and the
right to occupy the same, subject to the provisions
of Presidential Decree No. 512 (if applicable) and
not be prevented from entry into private ands by
surface owners and/or occupants thereof when
prospecting, exploring and exploiting for minerals
therein;
xxx
(f) to construct roadways, mining, drainage,

power generation and transmission facilities and
all other types of works on the Contract Area;
(g) to erect, install or place any type of improve-

ments, supplies, machinery and other equipment
relating to the Mining Operations and to use, sell
or otherwise dispose of, modify, remove or
diminish any and all parts thereof;
(h) enjoy, subject to pertinent laws, rules and
regulations and the rights of third Parties,
easement rights and the use of timber, sand, clay,
stone, water and other natural resources in the
Contract Area without cost for the purposes of the
Mining Operations;
xxx
(i) have the right to mortgage, charge or

encumber all or part of its interest and obligations
under this Agreement, the plant, equipment and
infrastructure and the Minerals produced from the
Mining Operations;
x x X.
All materials, equipment, plant and other installations

erected or placed on the Contract Area remain the property
of WMCP, which has the right to deal with and remove
such items within twelve months from the termination of
the FTAA.
Pursuant to Section 1.2 of the FTAA, WMCP shall provide

"[all] financing, technology, management and personnel
necessary for the Mining Operations." The mining
company binds itself to "perform all Mining Operations ...
providing all necessary services, technology and financing
in connection therewith," and to "furnish all materials,
labour, equipment and other installations that may be
required for carrying on all Mining Operations." WMCP
may make expansions, improvements and replacements of
the mining facilities and may add such new facilities as it
considers necessary for the mining operations.
These contractual stipulations, taken together, grant

WMCP beneficial ownership over natural resources that
properly belong to the State and are intended for the
benefit of its citizens. These stipulations are abhorrent to
the 1987 Constitution. They are precisely the vices that the
fundamental law seeks to avoid, the evils that it aims to
suppress. Consequently, the contract from which they
spring must be struck down.
In arguing against the annulment of the FTAA, WMCP

invokes the Agreement on the Promotion and Protection of
Investments between the Philippine and Australian
Governments, which was signed in Manila on January 25,
1995 and which entered into force on December 8,1995.
x x x. Article 2 (1) of said treaty states that it applies to

investments whenever made and thus the fact- that
[WMCP's] FTAA was entered into prior to the entry into
force of the treaty does not preclude the Philippine
Government from protecting [WMCP's] investment in
[that] FTAA. Likewise, Article 3 (1) of the treaty provides
that "Each Party shall encourage and promote investments
in its area by investors of the other Party and shall [admit]

such investments in accordance with its Constitution,
Laws, regulations and investment policies" and in Article 3
(2), it states that "Each Party shall ensure that investments
are accorded fair and equitable treatment." The latter
stipulation indicates that it was intended to impose an
obligation upon a Party to afford fair and equitable
treatment to the investments of the other Party and that a
failure to provide such treatment by or under the laws of
the Party may constitute a breach of the treaty. Simply
stated, the Philippines could not, under said treaty, rely
upon the inadequacies of its own laws to deprive an
Australian investor (like [WMCP]) of fair and equitable
treatment by invalidating [WMCP's] FTAA without
likewise nullifying the service contracts entered into before
the enactment of RA 7942 such as those mentioned in PD
87 or EO 279.
This becomes more significant in the light of the fact that

[WMCP's] FrAA was executed not by a mere Filipino
citizen, but by the Philippine Government itself, through
its President no less, which, in entering into said treaty is
assumed to be aware of the existing Philippine laws on
service contracts over the exploration, development and
utilization of natural resources. The execution of the FTAA
by the Philippine Government assures the Australian
Government that the FTAA is in accordance with existing
Philippine laws.
The invalidation of the subject FTAA, it is argued, would

constitute a breach of said treaty which, in turn, would
amount to a violation of Section 3, Article II of the
Constitution adopting the generally accepted principles of
international law as part of the law of the land. One of
these generally accepted principles is pacta sunt servanda,
which requires the performance in good faith of treaty
obligations.
Even assuming arguendo that WMCP is correct in its

interpretation of the treaty and its assertion that "the
Philippines could not ... deprive an Australian investor

(like [WMCP]) of fair and equitable treatment by
invalidating [WMCP's] FTAA without likewise nullifying
the service contracts entered into before the enactment of
RA 7942 ....
" the annulment of the FTAA would not
constitute a breach of the treaty invoked. For this decision
herein invalidating the subject FTAA forms part of the
legal system of the Philippines. The equal protection clause
guarantees that such decision shall apply to all contracts
belonging to the same class, hence, upholding rather than
violating, the "fair and equitable treatment" stipulation in
said treaty.
One other matter requires clarification. Petitioners contend
that, consistent with the provisions of Section 2, Article XII
of the Constitution, the President may enter into
agreements involving "either technical or financial
assistance" only. The agreement in question, however, is a
technical and financial assistance agreement.
Petitioners' contention does not lie. To adhere to the literal
language of the Constitution would lead to absurd
consequences. As WMCP correctly put it:
x x x such a theory of petitioners would compel the
government (through the President) to enter into
contract with two (2) foreign-owned corporations,
one for financial assistance agreement and with the
other, for technical assistance over one and the
same mining area or land; or to execute two (2)
contracts with only one foreign-owned corporation
which has the capability to provide both financial
and technical assistance, one for financial
assistance and another for technical assistance,
over the same mining area. Such an absurd result
is definitely not sanctioned under the canons of
constitutional construction.
Surely, the framers of the 1987 Charter did not contemplate
such an absurd result from their use of "either/or." A
constitution is not to be interpreted as demanding the

impossible or the impracticable; and unreasonable or
absurd consequences, if possible, should be avoided.
Courts are not to give words a meaning that would lead to
absurd or unreasonable consequences and a literal
interpretation is to be rejected if it would be unjust or lead
to absurd results. That is a strong argument against its
adoption. Accordingly, petitioners' interpretation must be
rejected.
The foregoing discussion has rendered unnecessary the
resolution of the other issues raised by the petition.
WHEREFORE, the petition is GRANTED. The Court
hereby declares unconstitutional and void:
(1) The following provisions of Republic Act No.
7942:
(a) The proviso in Section 3 (aq),
(b) Section 23,
(c) Section 33 to 41,
(d) Section 56,
(e) The second and third paragraphs of
Section 81, and
(f) Section 90.
(2) All provisions of Department of Environment
and Natural Resources Administrative Order
96-40, s. 1996 which are not in conformity with
this Decision, and
(3) The Financial and Technical Assistance
Agreement between the Government of the
Republic of the Philippines and WMC
Philippines, Inc.
SO ORDERED.
EN BANC
[G.R. No. 127882. December 1, 2004]
RESOLUTION
Panganiban, I.:
All mineral resources are owned by the State. Their
exploration, development and utilization (EDU) must
always be subject to the full control and supervision of the
State. More specifically, given the inadequacy of Filipino
capital and technology in large-scale EDU activities, the
State may secure the help of foreign companies in all
relevant matters-especially financial and technical
assistance -provided that, at all times, the State maintains
its right of full control. The foreign assistor or contractor
assumes all financial, technical and entrepreneurial risks in
the EDU activities; hence, it may be given reasonable
management, operational, marketing, audit and other
prerogatives to protect its investments and to enable the
business to succeed.
Full control is not anathematic to day-to-day management
by the contractor, provided that the State retains the power
to direct overall strategy; and to set aside, reverse or
modify plans and actions of the contractor. The idea of full
control is similar to that which is exercised by the board of
directors of a private corporation: the performance of
managerial, operational, financial, marketing and other
functions may be delegated to subordinate officers or given
to contractual entities, but the board retains full residual
control of the business.
Who or what organ of government actually exercises this
power of control on behalf of the State? The Constitution is
crystal clear: the President. Indeed, the Chief Executive is
the official constitutionally mandated to "enter into
agreements with foreign owned corporations." On the
other hand, Congress may review the action of the
President once it is notified of "every contract entered into
NATiONAL LAWS AND PouclEs 1 405
in accordance with this [constitutional] provision within

thirty days from its execution." In contrast to this express
mandate of the President and Congress in the EDU of
natural resources, Article XII of the Constitution is silent
on the role of the judiciary. However, should the President
and/or Congress gravely abuse their discretion in this
regard, the courts may-in a proper case-exercise their
residual duty under Article VIII. Clearly then, the
judiciary should not inordinately interfere in the exercise
of this presidential power of control over the EDU of our
natural resources.
The Constitution should be read in broad, life-giving
strokes. It should not be used to strangulate economic
growth or to serve narrow, parochial interests. Rather, it
should be construed to grant the President and Congress
sufficient discretion and reasonable leeway to enable them
to attract foreign investments and expertise, as well as to
secure for our people and our posterity the blessings of
prosperity and peace.
On the basis of this control standard, this Court upholds
the constitutionality of the Philippine Mining Law, its
Implementing Rules and Regulations - insofar as they
relate to financial and technical agreements -as well as the
subject Financial and Technical Assistance Agreement
(FTAA).
SUMMATION
To conclude, a summary of the key points discussed above
is now in order.
The Meaning of "Agreements Involving EitherTechnical or
FinancialAssistance"
Applying familiar principles of constitutional construction
to the phrase agreements involving either technical or financial
assistance, the framers' choice of words does not indicate
the intent to exclude other modes of assistance, but rather
implies that there are other things being included or
possibly being made part of the agreement, apart from
financial or technical assistance. The drafters avoided the
use of restrictive and stringent phraseology; a verba legis
scrutiny of Section 2 of Article XII of the Constitution
discloses not even a hint of a desire to prohibit foreign
involvement in the management or operation of mining
activities, or to eradicate service contracts. Such moves
would necessarily imply an underlying drastic shift in
fundamental economic and developmental policies of the
State. That change requires a much more definite and
irrefutable basis than mere omission of the words "service
contract" from the new Constitution.
Furthermore, a literal and restrictive interpretation of this

paragraph leads to logical inconsistencies. A constitutional
provision specifically allowing foreign-owned corporations
to render financial or technical assistance in respect of
mining or any other commercial activity was clearly
unnecessary; the provision was meant to refer to more than
mere financial or technical assistance.
Also, if paragraph 4 permits only agreements for financial

or technical assistance, there would be no point in
requiring that they be "based on real contributions to the
economic growth and general welfare of the country." And
considering that there were various long-term service
contracts still in force and effect at the time the new
Charter was being drafted, the absence of any transitory
provisions to govern the termination and closing-out of the
then existing service contracts strongly militates against
the theory that the mere omission of "service contracts"
signaled their prohibition by the new Constitution.
Resort to the deliberations of the Constitutional

Commission is therefore unavoidable, and a careful
scrutiny thereof conclusively shows that the ConCom
members discussed agreements involving either technical or
financial assistancein the same sense as service contracts and
used the terms interchangeably. The drafters in fact knew
that the agreements with foreign corporations were going
to entail not mere technical or financial assistance but,

rather, foreign investment in and management of an
enterprise for large-scale exploration, development and
utilization of minerals.
The framers spoke about service contracts as the concept
was understood in the 1973 Constitution. It is obvious
from their discussions that they did not intend to ban or
eradicate service contracts. Instead, they were intent on
crafting provisions to put in place safeguards that would
eliminate or minimize the abuses prevalent during the
martial law regime. In brief, they were going to permit
service contracts with foreign corporations as contractors,
but with safety measures to prevent abuses, as an
exception to the general norm established in the first
paragraph of Section 2 of Article XII, which reserves or
limits to Filipino citizens and corporations at least 60
percent owned by such citizens the exploration,
development and utilization of mineral or petroleum
resources. This was prompted by the perceived
insufficiency of Filipino capital and the felt need for
foreign expertise in the EDU of mineral resources.
Despite strong opposition from some ConCom members
during the final voting, the Article on the National
Economy and Patrimony -including paragraph 4 allowing
service contracts with foreign corporations as an exception
to the general norm in paragraph 1 of Section 2 of the same
Article-was resoundingly and overwhelmingly approved.
The drafters, many of whom were economists,
academicians, lawyers, businesspersons and politicians
knew that foreign entities will not enter into agreements
involving assistance without requiring measures of
protection to ensure the success of the venture and
repayment of their investments, loans and other financial
assistance, and ultimately to protect the business
reputation of the foreign corporations. The drafters, by
specifying such agreements involving assistance,
necessarily gave implied assent to everything that these
agreements entailed or that could reasonably be deemed

necessary to make them tenable and effective - including
management authority with respect to the day-to-day
operations of the enterprise, and measures for the
protection of the interests of the foreign corporation, at
least to the extent that they are consistent with Philippine
sovereignty over natural resources, the constitutional
requirement of State control, and beneficial ownership of
natural resources remaining vested in the State.
From the foregoing, it is clear that agreements involving
either technical orfinancialassistancereferred to in paragraph
4 are in fact service contracts but such new service
contracts are between foreign corporations acting as
contractors on the one hand, and on the other hand
government as principal or "owner" (of the works),
whereby the foreign contractor provides the capital,
technology and technical know-how, and managerial
expertise in the creation and operation of the large-scale
mining/extractive enterprise, and government through its
agencies (DENR, MGB) actively exercises full control and
supervision over the entire enterprise.
Such service contracts may be entered into only with
respect to minerals, petroleum and other mineral oils. The
grant of such service contracts is subject to several
safeguards, among them: (1)that the service contract be
crafted in accordance with a general law setting standard
or uniform terms, conditions and requirements; (2) the
President be the signatory for the government; and (3) the
President report the executed agreement to Congress
within thirty days.
Ultimate Test. Full State Control
To repeat, the primacy of the principle of the State's
sovereign ownership of all mineral resources, and its full
control and supervision over all aspects of exploration,
development and utilization of natural resources must be
upheld. But "full control and supervision" cannot be taken
literally to mean that the State controls and supervises

everything down to the minutest details and makes all required
actions, as this would render impossible the legitimate
exercise by the contractor of a reasonable degree of
management prerogative and authority, indispensable to
the proper functioning of the mining enterprise. Also,
government need not micro-manage mining operations
and day-to-day affairs of the enterprise in order to be
considered as exercising full control and supervision.
Control, as utilized in Section 2 of Article XII, must be taken

to mean a degree of control sufficient to enable the State to
direct, restrain, regulate and govern the affairs of the
extractive enterprises. Control by the State may be on a
macro level, through the establishment of policies,
guidelines, regulations, industry standards and similar
measures that would enable government to regulate the
conduct of affairs in various enterprises, and restrain
activities deemed not desirable or beneficial with the end
in view of ensuring that these enterprises contribute to the
economic development and general welfare of the country,
conserve the environment, and uplift the well-being of the
local affected communities. Such a degree of control
would be compatible with permitting the foreign
contractor sufficient and reasonable management authority
over the enterprise it has invested in, to ensure efficient
and profitable operation.
Government Granted Full Control n, RA 7942 and DAO 96-40
Baseless are petitioners' sweeping claims that RA 7942 and

its Implementing Rules and Regulations make it possible
for FTAA contracts to cede full control and management of
mining enterprises over to fully foreign owned
corporations. Equally wobbly is the assertion that the State
is reduced to a passive regulator dependent on submitted
plans and reports, with weak review and audit powers and
little say in the decision-making of the enterprise, for
which reasons "beneficial ownership" of the mineral
resources is allegedly ceded to the foreign contractor.
As discussed hereinabove, the State's full control and

supervision over mining operations are ensured through
the following provisions in RA 7942: Sections 8, 9, 16, 19,
24, 35[(b), (e), (f), (g), (h), (k), (1), (in) and (o)], 40, 57, 66, 69,
70, and Chapters XI and XVII; as well as the following
provisions of DAO 96-40: Sections7[(d) and (f], 35(a-2),
53[(a-4) and (d)], 54, 56[(g), (h), (1), (in) and (n)], 56(2), 60,
66, 144, 168, 171 and 270, and also Chapters XV, XVI and
XXIV.
Through the foregoing provisions, the government

agencies concerned are empowered to approve or dis-
approve-hence, in a position to influence, direct, and
change-the various work programs and the corres-
ponding minimum expenditure commitments for each of
the exploration, development and utilization phases of the
enterprise. Once they have been approved, the con-
tractor's compliance with its commitments therein will be
monitored. Figures for mineral production and sales are
regularly monitored and subjected to government review,
to ensure that the products and by-products are disposed
of at the best prices; copies of sales agreements have to be
submitted to and registered with MGB.
The contractor is mandated to open its books of accounts

and records for scrutiny, to enable the State to determine
that the government share has been fully paid. The State
may likewise compel compliance by the contractor with
mandatory requirements on mine safety, health and
environmental protection, and the use of anti-pollution
technology and facilities. The contractor is also obligated
to assist the development of the mining community, and
pay royalties to the indigenous peoples concerned. And
violation of any of the FTAA's terms and conditions,
and/or non-compliance with statutes or regulations, may
be penalized by cancellation of the FTAA. Such sanction is
significant to a contractor who may have yet to recover the
tens or hundreds of millions of dollars sunk into a mining
project.
Overall, the State definitely has a pivotal say in the

operation of the individual enterprises, and can set
directions and objectives, detect deviations and non-
compliances by the contractor, and enforce compliance and
impose sanctions should the occasion arise. Hence, RA
7942 and DAO 96-40 vest in government more than a
sufficient degree of control and supervision over the
conduct of mining operations.
Section 3(aq) of RA 7942 was objected to as being
unconstitutional for allowing a foreign contractor to apply
for and hold an exploration permit. During the explo-
ration phase, the permit grantee (and prospective con-
tractor) is spending and investing heavily in exploration
activities without yet being able to extract minerals and
generate revenues. The exploration permit issued under
Sections 3(aq), 20 and 23 of RA 7942, which allows
exploration but not extraction, serves to protect the
interests and rights of the exploration permit grantee (and
would-be contractor), foreign or local. Otherwise, the
exploration works already conducted, and expenditures
already made, may end up only benefiting claim-jumpers.
Thus, Section 3(aq) of RA 7942 is not unconstitutional.
WMCP FTAA Likewise Gives the State Full Control and
Supervision
The WMCP FTAA obligates the contractor to account for

the value of production and sale of minerals (Clause 1.4);
requires that the contractor's work program, activities and
budgets be approved by the State (Clause 2.1); gives the
DENR secretary power to extend the exploration period
(Clause 3.2-a); requires approval by the State for
incorporation of lands into the contract area (Clause 4.3-c);
requires Bureau of Forest Development approval for
inclusion of forest reserves as part of the FrAA contract
area (Clause 4.5); obligates the contractor to periodically
relinquish parts of the contract area not needed for
exploration and development (Clause 4.6); requires sub-
mission of a declaration of mining feasibility for approval
by the State (Clause 4.6-b); obligates the contractor to

report to the State the results of its exploration activities
(Clause 4.9); requires the contractor to obtain State
approval for its work programs for the succeeding two
year periods, containing the proposed work activities and
expenditures budget related to exploration (Clause 5.1);
requires the contractor to obtain State approval for its
proposed expenditures for exploration activities (Clause
5.2); requires the contractor to submit an annual report on
geological, geophysical, geochemical and other inform-
ation relating to its explorations within the FTAA area
(Clause 5.3-a); requires the contractor to submit within six
months after expiration of exploration period a final report
on all its findings in the contract area (Clause 5.3-b);
requires the contractor after conducting feasibility studies
to submit a declaration of mining feasibility, along with a
description of the area to be developed and mined, a
description of the proposed mining operations and the
technology to be employed, and the proposed work
program for the development phase, for approval by the
DENR secretary (Clause 5.4); obligates the contractor to
complete the development of the mine, including
construction of the production facilities, within the period
stated in the approved work program (Clause 6.1); requires
the contractor to submit for approval a work program
covering each period of three fiscal years (Clause 6.2);
requires the contractor to submit reports to the secretary on
the production, ore reserves, work accomplished and work
in progress, profile of its work force and management staff,
and other technical information (Clause 6.3); subjects any
expansions, modifications, improvements and replace-
ments of mining facilities to the approval of the secretary
(Clause 6.4); subjects to State control the amount of funds
that the contractor may borrow within the Philippines
(Clause 7.2); subjects to State supervisory power any
technical, financial and marketing issues (Clause 10.1-a);
obligates the contractor to ensure 60 percent Filipino equity
in the contractor within ten years of recovering specified
expenditures unless not so required by subsequent
NATIONAL LAWS AND POUCES I 413
legislation (Clause 10.1); gives the State the right to

terminate the FrAA for unremedied substantial breach
thereof by the contractor (Clause 13.); requires State
approval for any assignment of the FTAA by the contractor
to an entity other than an affiliate (Clause 14.1).
In short, the aforementioned provisions of the WMCP
FrAA, far from constituting a surrender of control and a
grant of beneficial ownership of mineral resources to the
contractor in question, vest the State with control and
supervision over practically all aspects of the operations of
the FTAA contractor, including the chari of pre-
operating and operatin; expenses. and the dsosition of
mineral products.
There is likewise no relinquishment of control on account
of specific provisions of the WMCP FTAA. Clause 8.2
provides a mechanism to prevent the mining operations
from grinding to a complete halt as a result of possible
delays of more than 60 days in the government's
processing and approval of submitted work programs and
budgets. Clause 8.3 seeks to provide a temporary, stop-
gap solution in case a disagreement between the State and
the contractor (over the proposed work program or budget
submitted by the contractor) should result in a deadlock or
impasse, to avoid unreasonably long delays in the
performance of the works.
The State, despite Clause 8,3, still has control over the
contract area, and it may, as sovereign authority, prohibit
work thereon until the dispute is resolved, or it may
terminate the FrAA, citing substantial breach thereof.
Hence, the State clearly retains full and effective control.
Clause 8.5, which allows the contractor to make changes to
approved work programs and budgets without the prior
approval of the DENR secretary, subject to certain
limitations with respect to the variance/s, merely provides
the contractor a certain Amount of flexibility to meet
unexpected situations, while still guaranteeing that the
approved work programs and budgets are not abandoned

altogether. And if the secretary disagrees with the actions
taken by the contractor in this instance, he may also resort
to cancellation/termination of the FTAA as the ultimate
sanction.
Clause 4.6 of the WMCP FTAA gives the contractor

discretion to select parts of the contract area to be
relinquished. The State is not in a position to substitute its
judgment for that of the contractor, who knows exactly
which portions of the contract area do not contain minerals
in commercial quantities and should be relinquished.
Also, since the annual occupation fees paid to government
are based on the total hectarage of the contract area, net of
the areas relinquished, the contractor's self-interest will
assure proper and efficient relinquishment.
Clause 10.2(e) of the WMCP FTAA does not mean that the
contractor can compel government to use its power of
eminent domain. It contemplates a situation in which the
contractor is a foreign-owned corporation, hence, not
qualified to own land. The contractor identifies the surface
areas needed for it to construct the infrastructure for
mining operations, and the State then acquires the surface
rights on behalf of the former. The provision does not call
for the exercise of the power of eminent domain (or
determination of just compensation); it seeks to avoid a
violation of the anti-dummy law.
Clause 10.2(1) of the WMCP FrAA giving the contractor

the right to mortgage and encumber the mineral products
extracted may have been a result of conditions imposed by
creditor-banks to secure the loan obligations of WMCP.
Banks lend also upon the security of encumbrances on
goods produced which can be easily sold and converted
into cash and applied to the repayment of loans. Thus,
Clause 10.2(1) is not something out of the ordinary.
Neither is it objectionable, because even though the
contractor is allowed to mortgage or encumber the mineral
end-products themselves, the contractor is not thereby
NAnoAL LAWs AND POUCIES 1 415
relieved of its obligation to pay the government its basic

and additional shares in the net mining revenue. The
contractor's ability to mortgage the minerals does not
negate the State's right to receive its share of net mining
revenues.
Clause 10.2(k) which gives the contractor authority "to

change its equity structure at any time," means that
WMCP, which was then 100 percent foreign owned, could
permit Filipino equity ownership. Moreover, what is
important is that the contractor, regardless of its
ownership, is always in a position to render the services
required under the FTAA, under the direction and control
of the government.
Clauses 10.4(e) and (i) bind government to allow

amendments to the FTAA if required by banks and other
financial institutions as part of the conditions of new
lendings. There is nothing objectionable here, since Clause
10.4(e) also provides that such financing arrangements
should in no event reduce the contractor's obligations or
the government's rights under the FTAA. Clause 10.4(i)
provides that government shall "favourably consider" any
request for amendments of this agreement necessary for
the contractor to successfully obtain financing. There is no
renunciation of control, as the proviso does not say that
government shall automatically grant any such request.
Also, it is up to the contractor to prove the need for the
requested changes. The government always has the final
say on whether to approve or disapprove such requests.
In fine, the FTAA provisions do not reduce or abdicate
State control.
No Surrender of FinancialBenets
The second paragraph of Section 81 of RA 7942 has been

denounced for allegedly limiting the State's share in
FTAAs with foreign contractors to just taxes, fees and
duties, and depriving the State of a share in the after-tax
income of the enterprise. However, the inclusion of the

phrase "among other things" in the second paragraph of
Section 81 clearly and unmistakably reveals the legislative
intent to have the State collect more than just the usual taxes,
duties andfees.
Thus, DAO 99-56, the "Guidelines Establishing the Fiscal
Regime of Financial or Technical Assistance Agreements,"
spells out the financial benefits government will receive
from an FTAA, as consisting of not only a basic
government share, comprised of all direct taxes, fees and
royalties, as well as other payments made by the contractor
during the term of the FTAA, but also an additional
government share, being a share in the earnings or cash
flows of the mining enterprLse, so as to achieve afit-ft
sharing of net benefits from mining between the govern-
ment and the contractor.
The additional government share is computed using one
of three (3)options or schemes detailed in DAO 99-56, viz.,
(1) the fifty-fifty sharing of cumulative present value of
cash flows; (2) the excess profit-related additional
government share; and (3) the additional sharing based on
the cumulative net mining revenue. Whichever option or
computation is used, the additional government share has
nothing to do with taxes, duties, fees or charges. The
portion of revenues remaining after the deduction of the
basic and additional government shares is what goes to the
contractor.
The basic government share and the additional
government share do not yet take into account the indirect
taxes and other financial contributions of mining projects.
which are real and actual benefits enjoyed by the Filipino
people; if these are taken into account, total government
share increases to 60 percent or higher (as much as 77
percent, and 89 percent in one instance) of the net present
value of total benefits from the project.
The third or last paragraph of Section 81 of RA 7942 is

slammed for deferring the payment of the government
share in FTAAs until after the contractor shall have
recovered its pre-operating expenses, exploration and
development expenditures. Allegedly, the collection of the
State's share is rendered uncertain, as there is no time limit
in RA 7942 for this grace period or recovery period. But
although RA 7942 did not limit the grace period, the
concerned agencies (DENR and MGB) in formulating the
1995 and 1996 Implementing Rules and Regulations
provided that the period of recovery, reckoned from the
date of commercial operation, shall be for a period not
exceeding five years, or until the date of actual recovery,
whichever comes earlier.
And since RA 7942 allegedly does not require government
approval for the pre-operating, exploration and
development expenses of the foreign contractors, it is
feared that such expenses could be bloated to wipe out
mining revenues anticipated for 10 years, with the result
that the State's share is zero for the first 10 years.
However, the argument is based on incorrect information.
Under Section 23 of RA 7942, the applicant for exploration
permit is required to submit a proposed work program for
exploration, containing a yearly budget of proposed
expenditures, which the State passes upon and either
approves or rejects; if approved, the same will
subsequently be recorded as pre-operating expenses that
the contractor will have to recoup over the grace period.
Under Section 24, when an exploration permittee files with
the MGB a declaration of mining project feasibility, it must
submit a work program for development, with
corresponding budget, for approval by the Bureau, before
government may grant an FTAA or MISA or other mineral
agreements; again, government has the opportunity to
approve or reject the proposed work program and
budgeted expenditures for development works, which will
become the pre-operating and development costs that will
have to be recovered. Government is able to know ahead

of time the amounts of pre-operating and other expenses to
be recovered, and the approximate period of time needed
therefor. The aforecited provisions have counterparts in
Section 35, which deals with the terms and conditions
exclusively applicable to FrAAs. In sum, the third or last
paragraphof Section 81 of RA 7942 cannot be deemed defective.
Section 80 of RA 7942 allegedly limits the State's share in a
mineral production-sharing agreement (MPSA) to just the
excise tax on the mineral product, i.e., only 2 percent of
market value of the minerals. The colatilla in Section 84
reiterates the same limitation in Section 80. However,
these two provisions pertain only to MPSAs, and have no
application to FrAAs. These particular provisions do not
come within the issues defined by this Court. Hence, on
due process grounds, no pronouncement can be made in
this case in respect of the constitutionality of Sections 80
and 84.
Section 112 is disparaged for reverting FTAAs and all
mineral agreements to the old "license, concession or lease"
system, because it allegedly effectively reduces the
government share in FTAAs to just the 2 percent excise tax
which pursuant to Section 80 comprises the government
share in MPSAs. However, Section 112 likewise does not
come within the issues delineated by this Court, and was
never touched upon by the parties in their pleadings.
Moreover, Section 112 may not properly apply to FTAAs.
The mining law obviously meant to treat FTAAs as a breed apart
from mineral agreements. There is absolutely no basis to
believe that the law intends to exact from FTAA
contractors merely the same government share (i.e., the 2
percent excise tax) that it apparently demands from
contractors under the three forms of mineral agreements.
While there is ground to believe that Sections 80, 84 and
112 are indeed unconstitutional, they cannot be ruled upon
here. In any event, they are separable; thus, a later finding
of nullity will not affect the rest of RA 7942.
NAnoAL LAWS AND POUClES 419
In fine, the challenged provisions of RA 7942 cannot be

said to surrender financial benefits from an FTAA to the
foreign contractors.
Moreover, there is no concrete basis for the view that, in

FTAAs with a foreign contractor, the State must receive at
least 60 percent of the after-tax income from the
exploitation of its mineral resources, and that such share is
the equivalent of the constitutional requirement that at
least 60 percent of the capital, and hence 60 percent of the
income, of mining companies should remain in Filipino
hands. Even if the State is entitled to a 60 percent share
from other mineral agreements (CPA, JVA and MPSA),
that would not create a parallel or analogous situation for
FTAAs. We are dealing with an essentially different
equation. Here we have the old apples and oranges
syndrome.
The Charter did not intend to fix an iron-clad rule of 60

percent share, applicable to all situations, regardless of
circumstances. There is no indication of such an intention
on the part of the framers. Moreover, the terms and
conditions of petroleum FTAAs cannot serve as standards
for mineral mining FTAAs, because the technical and
operational requirements, cost structures and investment
needs of off-shore petroleum exploration and drilling
companies do not have the remotest resemblance to those
of on-shore mining companies.
To take the position that government's share must be not

less than 60 percent of after-tax income of FTAA
contractors is nothing short of this Court dictating upon
the government. The State resultantly ends up losing control.
To avoid compromising the State's full control and
supervision over the exploitation of mineral resources,
there must be no attempt to impose a "minimum 60
percent" rule. It is sufficient that the State has the power
and means, should it so decide, to get a 60 percent share
(or greater); and it is not necessary that the State does so in
every case.
420 I PHIUPPINE LAW AND ECOLOGY
Invalid Provisionsofthe WVCP FTAA

Section 7.9 of the WMCP FIAA dearly renders illusory the
State's 60 percent share of WMCP's revenues. Under
Section 7.9, should WMCP's foreign stockholders (who
originally owned 100 percent of the equity) sell 60 percent
or more of their equity to a Filipino citizen or corporation,
the State loses its right to receive its share in net mining
revenues under Section 7.7, without any offsetting
compensation to the State. And what is given to the State
in Section 7.7 is by mere tolerance of WMCP's foreign
stckholders. who can at any time cut off the government's
entire share by simply selling 60 percent of WMCP's equity
to a Philippine citizen or corporation.
In fact, the sale by WMCP's foreign stockholder on January
23, 2001 of the entire outstanding equity in WMCP to
Sagittarius Mines, Inc., a domestic corporation at least 60
percent Filipino owned, can be deemed to have
automatically triggered the operation of Section 7.9 and
removed the State's right to receive its 60 percent share.
Section 7.9 of the WMCP FTAA has effectively given away
the State's share without anything in exchange.
Moreover, it constitutes uxjs enrichment on the part of
the local and foreign stockholders in WMCP, because by
the mere act of divestment, the local and foreign
stockholders get a windfall, as their share in the net mining
revenues of WMCP is automatically increased, without
having to pay anything for it
Being grossly disadvantageous to government and
detrimental to the Filipino people, as well as violative of
public policy, Section 7.9 must therefore be stricken off as
invalid. The FTAA in question does not involve mere
contractual rights but, being impressed as it is with public
interest, the contractual provisions and stipulations must
yield to the common good and the national interest. Since
the offending provision is very much separable from the
rest of the FTAA, the deletion of Section 7.9 can be done
without affecting or requiring the invalidation of the entire

WMCP FfAA itself.
Section 7.8(e) of the WMCP FrAA likewise is invalid since

by allowing the sums spent by government for the benefit
of the contractor to be deductible from the State's share in
net mining revenues, it results in benefiting the contractor
twice over. This constitutes unjust enrichment on the part
of the contractor, at the expense of government. For being
grossly disadvantageous and prejudicial to government
and contrary to public policy, Section 7.8(e) must also be
declared without effect. It may likewise be stricken off
without affecting the rest of the FTAA.
EPILOGUE
AFE ALL IS SAID AND DONE, it is clear that there is
unanimous agreement in the Court upon the key principle
that the State must exercise full control and supervision
over the exploration, development and utilization of
mineral resources.
The crux of the controversy is the amount of discretion to be
accorded the Executive Department,particularlythe Presidentof
the Republic, in respect of negotiationsover the temns of FFAAs,
particularlywhen it comes to the government share offinancial
benefits from FTAAs. The Court believes that it is not
unconstitutional to allow a wide degree of discretion to the
Chief Executive, given the nature and complexity of such
agreements, the humongous amounts of capital and
financing required for large-scale mining operations, the
complicated technology needed, and the intricacies of
international trade, coupled with the State's need to
maintain flexibility in its dealings, in order to preserve and
enhance our country's competitiveness in world markets.
We are all, in one way or another, sorely affected by the

recently reported scandals involving corruption in high
places, duplicity in the negotiation of multi-billion peso
government contracts, huge payoffs to government
officials, and other malfeasances; and perhaps, there is the
desire to see some measures put in place to prevent further

abuse. However, dictating upon the President what
minimum share to get from an FrAA is not the solution.
It sets a bad precedent since such a move institutionalizes
the very reduction if not deprivation of the State's control.
The remedy may be worse than the problem it was meant
to address. In any event, provisions in such future
agreements which may be suspected to be grossly
disadvantageous or detrimental to government may be
challenged in court, and the culprits haled before the bar of
justice.
Verily, under the doctrine of separation of powers and due
respect for co-equal and coordinate branches of
government, this Court must restrain itself from intruding
into policy matters and must allow the President and
Congress maximum discretion in using the resources of
our country and in securing the assistance of foreign
groups to eradicate the grinding poverty of our people and
answer their cry for viable employment opportunities in
the country.
"The judiciary is loath to interfere with the due exercise by
coequal branches of government of their official functions." As
aptly spelled out seven decades ago by Justice George
Malcolm, "Just as the Supreme Court, as the guardian of
constitutional rights, should not sanction usurpations by any
other department of government, so should it as strictly confine
its own sphere of influence to the powers expressly or by
implication conferred on it by the Organic Act." Let the
development of the mining industry be the responsibility
of the political branches of government. And let not this
Court interfere inordinately and unnecessarily.
The Constitution of the Philippines is the supreme law of
the land. It is the repository of all the aspirations and
hopes of all the people. We fully sympathize with the
plight of Petitioner La Bugal -B'laan and other tribal
groups, and commend their efforts to uplift their
communities. However, we cannot justify the invalidation
of an otherwise constitutional statute along with its

implementing rules, or the nullification of an otherwise
legal and binding FTAA contract.
We must never forget that it is not only our less privileged
brethren in tribal and cultural communities who deserve
the attention of this Court; rather, all parties concerned -
including the State itself, the contractor (whether Filipino
or foreign), and the vast majority of our citizens-equally
deserve the protection of the law and of this Court. To
stress, the benefits to be derived by the State from mining
activities must ultimately serve the great majority of our
fellow citizens. They have as much right and interest in the
proper and well-ordered development and utilization of
the country's mineral resources as the petitioners.
Whether we consider the near term or take the longer
view, we cannot overemphasize the need for an
appropriate balancing of interests and needs -the need to
develop our stagnating mining industry and extract what
NEDA Secretary Romulo Neri estimates is some US$840
billion (approx. PhP47.04 trillion) worth of mineral wealth
lying hidden in the ground, in order to jumpstart our
floundering economy on the one hand, and on the other,
the need to enhance our nationalistic aspirations, protect
our indigenous communities, and prevent irreversible
ecological damage.
This Court cannot but be mindful' that any decision
rendered in this case will ultimately impact not only the
cultural communities which lodged the instant Petition,
and not only the larger community of the Filipino people
now struggling to survive amidst a fiscal/budgetary deficit,
ever increasing prices of fuel, food, and essential
commodities and services, the shrinking value of the local
currency, and a government hamstrung in its delivery of
basic services by a severe lack of resources, but also
countless future generationsof Filipinos.
424 I PHIUPPINE LAW AND ECOLOGY
For this latter group of Filipinos yet to be born, their

eventual access to education, health care and basic services,
their overall level of well-being, the very shape of their
lives are even now being determined and affected partly
by the policies and directions being adopted and
implemented by government today. And in part by the this
Resolution rendered by this Court today.
Verily, the mineral wealth and natural resources of this
country are meant to benefit not merely a select group of
people living in the areas locally affected by mining
activities, but the entire Filipino nation, present and future,
to whom the mineral wealth really belong. This Court has
therefore weighed carefully the rights and interests of all
concerned, and decided for the greater good of the greatest
number. JUSTICE FOR ALL, not just for some; JUSTICE
FOR THE PRESENT AND THE FUTURE, not just for the
here and now.
WHEREFORE, the Court RESOLVES to GRANT the

respondents' and the intervenors' Motions for Reconsider-
ation; to REVERSE and SET ASIDE this Court's January 27,
2004 Decision; to DISMISS the Petition; and to issue this
new judgment declaring CONSTITUTIONAL (1) Republic
Act No. 7942 (the Philippine Mining Law), (2) its
Implementing Rules and Regulations contained in DENR
Administrative Order (DAO) No. 9640-insofar as they
relate to financial and technical assistance agreements
referred to in paragraph 4 of Section 2 of Article XII of the
Constitution; and (3) the Financial and Technical
Assistance Agreement (FTAA) dated March 30, 1995
executed by the government and Western Mining
Corporation Philippines Inc. (WMCP), except Sections 7.8
and 7.9 of the subject FTAA which are hereby
INVALIDATED for being contrary to public policy and for
being grossly disadvantageous to the government. SO
ORDERED.
NATIONAL LAWS AND POUCES 1 425
8.3 PolicyAnalysis (effectiveness of laws in addressing

environmentalproblem)
8.3.1 Contribution of the Mining Industry to the Economy
Mining operations bring jobs and infuse money into the local
economy, and the mining sector contributes to economic
growth in general. Even so, is any positive number in terms
of job generation and economic growth always a good thing?
How much incentive does the government give to the
mining sector, which should be deducted from the net
benefits to the country and local people? How much more
(or less) can the government get if it considers alternative
uses of the land? In other words, are Filipinos (as a people)
really better off with mining, and is the government getting
the best deal for its people? These are tough questions to
answer because the researchers do not have the complete
picture, due to the lack of data and a framework to analyze
benefits as a whole. But there are known facts that can help
in this analysis:
a. Contribution of mining sector to employment generation-

According to the Mines and Geosciences Bureau (MGB),
the mining (and quarrying) sector's contribution to
national total employment has always been below 1
percent (1%). Recent data has shown that it has been 0.5%
since 2008 until 2010, So far, for the first half of 2011,
contribution has been reported as 0.6% (in contrast to
agriculture at 33% in 2011). All over the world, extractive
mining is known as a low-employment generating
activity. The Tampakan project, with expected
investments of $5.9 billion, will provide only 2,000
permanent jobs.
Contributionof mining industry to growth in other sectors -

Habitoll 6 observed that the mining sector has relatively
low labor-output ratios in terms of employment
generation. Labor compensation accounts for only 13.3%
against an average of 20.7% in all sectors. The sector has a
backward linkage index of only 0.46, meaning there is
relatively little input from other domestic industries;
even the forward linkage of 0.82 indicates that the sector
is below average compared to all other sectors in
generating further domestic economic activities. Minerals
are being exported with little value-adding that could
have generated further employment and industry
linkage.
b. Contribution of mining to economic growth-At the macro

level, the contribution of mining to GDP has remained in
the single digits. As of 2010, it only contributed 1.0%,
with a Gross Value Added in Mining of PhP88.2
billion,117 compared to the agricultural sector's
contribution of 12% in 2010.118 As for its contribution to
total exports, export of minerals and mineral products
has averaged 4.5% in the last four years and reporting
4.3% for the first half of 2011.119 Total exports of non-
metallic minerals' share are even lower, hovering around
0.4% for the past 4 years'm compared to agriculture at 8%
for 2011. The manufacturing and service sector has
always been the main driver of economic growth for the
country comprising of over 50% of GDP.2
16 Cielito Habito, An Agenda for High and Inclusive Growth in the Philippine,
Asian Development Bank (2010).
117 Mines and Geosciences Bureau (2011).
118 ureau of Agricultural Statistics (2011)
119Mines and Geosciences Bureau (2011).
1 Id.
1 Asian Development Bank (2011).
However, the picture can be very different from the

perspective of a project proponent. In the Tampakan
Copper-Gold Project, Sagittarius Mines, Inc. (SMI)
estimates that the project alone will contribute an
additional 1% of national GDP, or an additional 10.4% of
regional GDP for Regions XI and XII. It is difficult to
access data for relative contribution of existing projects to
local economic growth (at provincial and municipal
levels), if data exists at all.
c. Inflow of foreign investments and outflow of profits - The
figures are not readily accessible to the public, but the
government should be able to determine how much of
the foreign funds that come in actually remains in the
country to generate more jobs and economic activities.
How quickly do the funds return to the foreign
investors?
Figure 1. Total Mining Investment including forecasts that include

seven development projects such as Tampakan Copper, Far
Southeast Copper-Gold Project, Runruno Gold-Molybdenum
Project, Didipio Copper-Gold, Boyungan Gold Project, Sumitomo
Nickel Project and Kingking Copper Gold Project.122
3,500.00
3,000.00
2,500.00
2,000.00
955.86
1,500.00 719.51
1,000.00 706.40
1000.0 604.17 P]
500.00
2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016
'2 Mines and Geosciences Bureau (2011).

d. Revenues/taxes received by the government-The amounts of

taxes, fees and royalties from mining change from year to
year and do not appear to show a trend.
Table 1. Taxes, Fees and Royalties from Mininglz
2007 2008 2009 201O 1'
Taxes, Fees
and Royalties
from Mining
Fees, charges 774.0 557.4 3692 800.6 383.8
and royalties
colected by
DENR-
MGB/LGUs
Excise Tax 942.1 660.3 718.8 1,99.7
Collected by
BIR
Taxes Collected 8,371.7 5,949.5 10,272.5 10,551.6
by National
Government
Agencies
Taxes and Fees 359.8 5222 992.8 1,050.5 10.1
Colleced by
LGUs
Total 10,447.6 7,689.4 12,3803 13,702A 393.9
*data in million pesos
There are other factors to consider in how much the

government actually gets. It would seem that a tax
holiday for Financial and Technical Assistance Agree-
ments (FTAAs) and the 2% limit of government (excise)
tax on Mineral Production and Sharing Agreements
(MPSAs) translate to almost zero revenue for govern-
ment. Bautista 24 estimated that 19.60% to 29.74% of
W id.
'a Mines and Geosienwes Bureau (2011).
NATnONAL LAWS AND POUClIES 429
mining revenue accrues to government tax collection.

Action for Economic Reforms 2 calculated only a 7.5%
effective tax rate in the industry (1997-2000). AER also
cited that the government loses an average of 32% of
revenues annually (1999-2004) because of incentive laws.
Compared to other countries, the Philippines' effective
tax rate is low. Deutsche Bank 26 reported that effective
tax rate for minerals in other countries are as follows: US
(40%), Australia (38%), Brazil (38%), and Canada (23%).
In the Tampakan Project, SMI estimates that the project
will produce a revenue stream of up to US$37B (PhP1.85
trillion) over the life of the mine - US$7 billion will go to
government as taxes/duties/royalties and US$2 billion
will go to local governments and host communities.
According to the Chamber of Mines, government already
gets 41% of the mining firm's income before taxes, which
is much higher compared to Africa (average 34.4%) or
Latin America (average 39.5%).
e. Poverty incidence in mining areas - There are a few studies
that appear to associate poverty incidence with mining.
It is difficult to make sweeping conclusions, but the data
shows that provinces hosting mining operations do not
necessarily demonstrate improvement in the lives of local
people.
In a recent study, 27 the poverty incidence among
individuals engaged in mining has continued to increase,
compared to workers in other sectors. In 2006, income
poverty in the sector was at 34.64 and by 2009 it
WAction for Economic Reforms (2009).

Im Deutsche Bank (2010).
1W Arsenio Balicasan,What Has Really Happened to Poverty in the Philippines?
New Measures, Evidence, and Policy Implication, University of the Philippines
School of Economics (Discussion Papers 14, 2011).
increased to 48.71. The author also uses a multi-

dimensional poverty index (MPI) that captures various
dimensions of poverty (see Table 2). The mining sector
also shows a high deprivation in health and education
compared to other industries (see Table 3).
Table 2. MPI, H, A and Income Poverty by Sector,

2006 and 2009
sector Number of Income Number of InCOme

MRI H A MMIPOcr M4I H A MI poor
(inVW)povrt
Awljcuture 0313 0.0 0.519 17,819 47.84 0.281 032 0.09 16.4 47.92
Mlft 0.291 0.562 0.318 2 34.64 0.278 0.553 0.503 261 48.71
Menutocturdi 0.098 0.223 0.439 1.199 1&.19 0.09 0.223 0.442 1,149 17.79
Utlet" 0.023 0062 0349 23 744 0A31 0.074 0.414 32 3.23
Consbtion 0.155 0.351 0-443 2.069 25.19 0.134 0.309 0.440 1961 24.52
Trade 0.093 0.216 0429 2,130 13.87 0.073 0.175 0.427 1,734 13.12
&
Trenspo
Comm 0.099 0.228 0412 1.822 15.62 0.088 0.211 0.418 1.A82 1323
RFrnce 0.01 0.050 0.388 23 4.15 0.016 0.46 0.344 22 2.84
Se ce 0,074 0.171 0438 1944 12.41 0 0.153 0.426 1,969 11.94
UnmoplaW 0.077 0.174 0.44
;: 171 12.85 0.06? 0.153 0.A42 2,147 12.83
Note: The table summarizes the estimates of multidimensional poverty

index (MPI), multidimensional headcount (H), and average deprivation
intensity experienced by the poor (A).
Table 3. Contributions of Dimensions per group

n Setmdnrd of
AW4cufttor 36.6 20.2 43.2

M-inng 37.0 21.8 41.2
.4[amuc;i*M
t 34.7 24.1 41.1
Utu0l.e 29.3 28.4 42.2

cowastrution 33.7 21.8 42.3
Trad, 33.2 23.3 40.4

TV-Poeatio 33.2 21.8 43.1
Finmnow 19.3 36.9 43.7

50-1=00 34.6 24.3 41.1
The 2003 small area poverty incidence of National

Statistical Coordination Board (NSCB) shows that
Bataraza, Palawan, where Rio Tuba has been operating
for thirty (30) years has a poverty incidence that is twice

the national rate, and is in the bottom 25% of
municipalities on poverty incidence.
Some may argue that at the project level, mining
operations can have a significant impact on the local
community income from royalties and social benefits,
which could lift families out of poverty. For the
Tampakan Project, SMI expects royalty payments and
social development contributions to reach US$800 million
to host indigenous and local communities.
There are no systematic studies to track the impact of the
mining sector (as a whole or at a project level) to
improving the lives of local communities. It is important
to measure this economic impact especially after mining
activities end.
f. Improvement of health and education services in mining areas
-According to Bautista,128 a paltry 0.11% to 0.26% (with
gold mines at 1.23%) of mining revenues go to
community development. How much of this goes to
improving the health and education of local
communities? Since these services are the responsibility
of government, it is also important to know how much of
the government's share from mining revenues has been
put into improving basic services.
There are many reports of adverse health impacts
associated with mining, both large- and small-scale. 129
These have shown poor health in communities mostly
due to exposure to high levels of mercury, specifically in
12 Bautista (2009).
129 Sakaon, (2003);Drasch, et al. (2001); Appleton, et. al. (1999); and Bautista
(2006).
areas of small-scale mining. Even granting that these
incidents are accidental or isolated instances, the health
impacts of mining require accurately accounting for the
improvement of health services together with the
dangers to life and health.
The benefits that the country and local people can derive
from mining have a limit in amount and in time period. A
visit to a mining operation typically shows new roads and
access to transportation, increased trade of goods and
services supplied to the mining operations, even improved
access to health centers and schools. These added benefits
might be provided by the mining operator or the
government, or made possible because of the presence of
mining operations. Mining companies claim that there are
huge economic and social benefits during mining operations,
although there are no independent studies that measure the
net benefits after accounting for the costs.
On the contrary, there is no dispute that there is little or no
economic benefits after operations end. The sustainability of
the benefits from mining depends on how the benefits will
be allocated among the beneficiaries in the present and for
the future. But, is there any municipality that shows signi-
ficantly better quality of life than neighboring municipalities
after mining has left?
Based on available verifiable information, it can be argued that the
contribution of mining to the overall economy is small. The
Philippinegovernment does not appear to be getting the best deal
for the people, especially compared to other countries with mining
industries, and most of the benefits go to a very narrow set of
beneficiaries. The researchers encourage the mining industry
to provide verifiable information on benefits that are not
considered here.
8.3.2 Environmental and Social Costs

There are many documented experiences involving mining
conflicts and issues that highlight the risks of mining. The
following cases are meant to illustrate some experiences, and
are not intended to show that mining activities only result in
damages or conflicts.
MarcopperMining
The following year after the Mining Act was signed into law,
the country experienced one of its most serious industrial
pollution accidents. The incident involved the Marcopper
Mining Corporation, the largest mining company in
Marinduque, which had been carrying out open-pit copper
mining since the 1970s. When the company finished one of
its operations in Marinduque, it plugged the old pit with
concrete so that it could act as a disposal pond for mine
waste. Seepage was then discovered in August 1995. It then
ruptured and caused discharged tailings into the Boac river
system. This resulted to the release of 1.6 million cubic
meters of tailings along the river. Because of this, crops and
vegetables were destroyed and irrigation channels to rice
fields were blocked. The United Nations then declared the
accident to be a major environmental disaster. It announced
that aquatic life, productivity and beneficial use of the rivers
for domestic and agricultural purposes were totally lost
because of the sedimentation.130 The toxic spills caused flash
floods that isolated five villages with a population of 4,400
people. The government estimates that the toxic tailings
waste caused the residents to have levels of zinc and copper
130 Assessment mission conducted under the leadership of UNEPIWater Branch,

United Nations Department of Humanitarian Affairs, (March 10, 2011),
http://www.reliefweb-nt/ocha-ol/programs/response/unep/unep4.html (last
visited June 2012).
in their bodies that are beyond tolerable levels. Water

sources were also contaminated.
Rapu-Rapu Mining Tragedy
Lafayette Philippines, Inc. started mining in Rapu-Rapu,
Albay on July 2005. It is a domestic subsidiary of Lafayette
Mining Ltd. of Australia. They are the true owners of the
mine in Rapu-Rapu. Four months later, there were two
incidents of spilling of mine tailings. The first incident on
October 11, 2005 was caused by a malfunctioning of a
pumping unit that resulted into an overflow of tailings into
the open sea. On October 31, 2005, there were heavy rains
that led to the overflowing of the mine tailings of Lafayette.
The company caused cyanide spill and fish-kills that
paralyzed the livelihood of the poor local communities in
Rapu-Rapu and fishing and tourism in Sorsogon. Lafayette
denied the fish-kill and the Mines and Geosciences Bureau
(MGB) supported it by exonerating Lafayette from the
blame. 131 The Department of Environment and Natural
Resources (DENR) ordered the company to pay P10.4 million
in fines and penalties for the two mine spills for violating the
Clean Water Act. Michael Defensor, then Environment
Secretary, explained that the fines were justified at P200,000
per day for violations.132
South CotabatoOpen-Pit Mining Ban
The provincial government of South Cotabato implemented
an open-pit mining ban on July 2010 because of threats of
pollution and damages to the water assets of South Cotabato
m Mines and Communities Website, The Tragedy of Mining in Rapu-Rapu Island

Ecosystem, Albay Province (April 28, 2011), http://www.minesandcommu
nities.org/article.php?a=2309 (last visited June 2012).
1W2Manila Bulletin, Fishermen Demand Pullout of Mining Firm from Albay (April
30,2011) httpJ/www.mb.com.ph/node/57951 (last visited June 2012).
which is crucial to its largely agricultural economy. 133 Open-

pit mining method is said to be destructive in nature and
results to the denudation of forests. The implementing rules
and regulations RR) were signed on March 2011. Because of
this, the Tampakan Copper-Gold Project of Australian-
backed Sagittarius Mines, Inc. (SMI) worth $5.9 billion of
potential investment, might not push through. Stakeholders
like mining companies, chambers of commerce and the
DENR have expressed opposition to the ban saying that they
could not supersede the Mining Act of 1995.134
Other provinces, like Zamboanga del Norte and Batangas,
are now considering restrictions on mining in light of the ban
implemented by South Cotabato. 135 But is this action
efficient? Despite the ban, illegal small-scale mining
continues in South Cotabato.136
PalawanMining
Palawan is famous for its natural resources, which have
captivated many people. It is home to 40% of the Philippines'
mangrove areas, 30% of the country's coral reefs, 17
biodiversity areas, 2 UNESCO World Heritage Sites and 8
declared protected areas. One of its main attractions, the
13 Philippine Daily Inquirer, South Cotabato Bans Open Pit Mining (April 20,
2011), http://business.inquirer.net/money/topstories/view/20100701-278512/
South-Cotabato-bans-open-pit-mining (last visited June 2012).
1N Philippine Daily Inquirer, South Cotabato to Implement Open-pit Mining Ban
Next Week (April 20, 2011), http://business.inquirer.net/money/topstories/
view/20100701-278512/South-Cotabato-bans-open-pit-mining (last visited
June 2012).
13 Intell Asia Website, More Philippine Provinces Considering Restrictions on
Mining (April 21, 2011), http://www.intellasia.net/news/ar.les/resoums/
111321334_prnter.shtnl (last visited June 2012).
136 Business World Online, Illegal Small-Scale Mining Continues Despite
Prohibition (April 30, 2011), http://www.bworldonline.com/contentphp?
sectionfNation&titfe=Megal-small-scale-mining-condnues-despite-prohibi
tion&id=30242 (last visited June 2012).
Puerto Princesa Subterranean River Natural Park, is a

candidate to be one of the new wonders of the world.
According to Puerto Princesa Mayor Hagedorn, the
ecosystem of Palawan is fragile and is prone to erosion.1 37
This is why mining should be banned. There is also
legislation such as RA 7611 or the Strategic Environment
Plan for Palawan that mandates that certain areas subject to
qualifications should be fully protected and kept free from
human disruption. Despite this, mining continues.
At present, a campaign to collect 10 million signatures
against mining in Palawan has already been launched by
multisectoral environmental coalition Save Palawan
Movement in order to send a message to the government.
President Aquino has already ordered to stop the processing
of new mining applications in the province in response to the
protest to stop mining in the area.
Compostela Valley Landslide
On April 22, 2011, Good Friday, a landslide occurred in the
small mining community of Pangason-B, Kingking village in
Pantukan Compostela valley. It buried many homes, left
eight dead and many injured. 138 Small miners in the area
allegedly have violated not only the law on mining but also
other laws. They were reported to have been using
explosives, mercury, and cyanide, which are all banned by
13 ABS-CBN News Online, Save Palawan Movement Launches No To Mining

Campaign (April 30, 2011), http://www.abs-cbnnews.com/-depth/02/03/11V
save-palawan-movement-launches-no-mining-campaign-0 (last visited June
2012).
L3 Philippine Daily Inquirer, Three Out Of Eight Killed In Compostela Valley
Landslide Identified (April 28, 2011), http://globalnation.inquirer.net/view
points/viewpoints/view2011042633304 -8-killed-in-Compostela-Va
ley-landslide-identified (last visited June 2012).
law in small mining activities.'3 Residents were asked to

move out and the government has prepared to forcibly
evacuate the families who refuse to leave. Because of this,
calls for a moratorium on all mining operations until an
efficient monitoring and control system has emerged. A
Catholic bishop has expressed his opinion saying that the
government should address the 'loopholes' in the Mining
Act of 1995.
8.4.1 Is Responsible Mining Possible in the Philippines?
A simple operational answer is: responsible mining is
complying with the laws that already take into account its
environmental, social, economic, cultural, and other impacts.
However, this assumes that the existing regulations are
enough to safeguard the health of the environment and
human communities, and that these come with effective
mechanisms of implementation.
Republic Act No. 7942 or the Philippine Mining Act or 1995
declares that all Philippine mineral resources are owned by
the State, which is responsible for the "rational exploration,
development, utilization and conservation [of mineral
resources] through the combined efforts of government and
the private sector in order to enhance national growth in a
way that effectively safeguards the environment and protect
the rights of affected communities. "The law mandates
several environmental and social work programs (i.e., the
Environmental Work Program, the Environmental Protection
and Enhancement Program, the Final Mine Rehabilitation/
Decommissioning Plan and the Social Development and
139 Philippine Daily Inquirer, Suspension of Mining Urged; Death Toll Rises to 8
(April 28, 2011), http://newsinfo.inquirer.net/inquirerheadlines/nation/
view-article.php?artidejd-332979 (last visited June 2012).
Management Program), as well as financial assurances (i.e.,
the Contingent Liability and Rehabilitation Fund, Mine
Rehabilitation Fund, and Mine Wastes and Tailings Reserve
Fund).
However, because of the unreliability and insufficiency of
available monitoring data, it is still uncertain whether these
mechanisms are enough and whether they are enforced
effectively. There is still no definitive document from the
government that clearly and specifically details the national
expectation for responsible mining. Does the legal
framework take into account the uncertainties detailed
above, the uniqueness of Philippines as biodiversity-rich, the
sensitivity of small islands, the situation in populated mining
areas, risks from extreme weather, and so on? Is compliance
with the law enough?
Responsible mining can also be measured using basic
principles developed and adopted by ethical mining
companies worldwide. The Philippine Chamber of Mines'
Compliance and Beyond: A Guidebook on Corporate Social
Responsibility for the Philippine Mining Industry is the most
comprehensive guidance on responsible mining in the
country so far, which includes specific suggestions on how to
adhere to responsible mining at every stage of the mining
cycle. The following principles are the bases for the
Guidebook:
" Protect the environment as a paramount consi-

deration in all stages of mining and conduct activities
in a manner that will contribute to the broader goals
of sustainable development.
" Protect the rights of affected communities, including
the rights of indigenous cultural communities.
Engage in adequate and timely communication and
consultation with them and work for the improve-
ment of the quality of their lives during and even

after the life of the mine.
" Safeguard the health and safety of mineworkers, local
population, host and impact communities, and
address foreseeable health- and safety-related
impacts associated with mining over its full life cycle.
" Maintain a competent workforce that is committed to
responsible mining and whose welfare is advanced.
Make sure that affected communities benefit from
mining through employment, whenever possible.
" Respect, protect, and promote human rights of those
affected by mining and promote human rights-
sensitive security arrangements.
* Adopt responsible corporate governance and
management principles that nurture trust and
promote company integrity by developing effective
self-regulatory practices and management systems
and employing business practices that are ethical,
transparent and accountable. 140
In the Philippines, a special concern for responsible mining is
the identification of "no-go" areas. Despite provisions in the
law that identify areas closed to mining, field
implementation has been beset by conflicts. There is no
clear-cut policy on mining in island ecosystems that are most
vulnerable to environmental and social impacts. The
National Integrated Protected Areas System (NIPAS) and
SEP for Palawan laws should inform such a policy. In 2000,
DENR issued Administrative Order No. 83 on "Guidelines
for the Management And Development of Small Islands,
Including Its Coastal Areas" but this regulation has not
stopped the exploitation of mineral resources in small islands
and coastal areas.
14OChamber of Mines (2010).

8.4.2 What Operational Conditions Must be Met to Conduct

Responsible Mining in the Philippines?
Responsible mining has to accurately assess and account for all
relevant costs and benefits:
" The appropriate valuation mechanisms should be

employed to ensure that the environmental and social
responsibilities are accounted for, and that the
negative impacts are mitigated and affected
communities compensated.
* There must be a more comprehensive articulation of
risk assessment for disaster management, given that
the Philippines is prone to geophysical disturbance
and climate change-induced hazards.
" Regulations on environmental impact studies should
be reviewed to account for the value of biodiversity
and ethnodiversity significance.
Responsible mining has to respect no-go areas:
* There must be respect for the NIPAS and SEP for

Palawan that declare areas closed to mining.
" There must be respect for the right of local
governments to close areas within their territorial
jurisdiction to mining operations as a precautionary
measure, in the absence of credible information on
impacts and acceptable risks.
" Small island ecosystems should be excluded from
mining. Agenda 21 of the United Nations identifies
small islands supporting small communities as
special cases for environment and development,
being ecologically fragile and vulnerable. The ocean
and coastal environment of small islands of strategic
importance and constitutes a valuable development
resource. Their small size, limited resources,
geographic dispersion and isolation from markets,
place them at a disadvantage economically and

prevent economies of scale.
Responsible mining has to respect the decision of local stakeholders,
especially indigenouspeoples:
Inconsistencies in the implementation of FPIC raise

serious doubts as to the validity of community
consent and benefit-sharing agreements.
" The right of EPs and local communities to say "no"
should be respected and not taken as a provisional
decision subject to negotiation until communities
finally say "yes."
Small-scale mining should be held to the same high standards:
0 Policies on small-scale mining should be revised to
account for the same impacts as large-scale mining:
8.4.3 What Actions Must the Government Take Towards
Management of Responsible Mining?
The operational conditions for responsible mining must be
matched with governance actions, including:
0 Defining a policy to get the best deal for the people -The
country and local communities apparently get little in
terms of benefits from mining, compared to the
returns that investors get. The Philippine
Development Plan (PDP) noted from an assessment
report of a mining project' 4 ' that the fair share of the
government from mining has not been achieved due
to the existing incentive mechanism. 42 The current
fiscal incentives and taxation regime in mining are
141 Rapu-Rapu Polymetallic Project (RRPP).

142 Philippine Development Plan for 2011-2016 297(2011).
inadequate and do not assume long-term national

and local benefits in the extraction of exhaustible
resources. The government recently proposed the
imposition of a 5% royalty for the exploitation of
select mineral reservations. This has been met with
stiff opposition by the mining industry. Comparative
data on government benefits from mining are
conflicting; therefore the government must make
further studies to firm up its negotiating position.
In the landmark case of La Bugal-B'laan Tribal
Association vs. Ramos,1' the Supreme Court ruled that
the Mining Act of 1995 was constitutional provided it
was implemented in a manner that truly benefited the
country. The Court stated that the government
retained control of mineral resources in the country
through regulation. Thus, if the government and
society at large do not benefit from the current
mining revenue system, modifying that system is
then justified.
Defining clear indicators for reforms -Clear and
measurable indicators are needed to track compliance
and progress in reforms needed for responsible
mining, including inclusiveness of economic benefits,
as well as social, cultural, and environmental
safeguards. The government needs to design and
implement a systematic monitoring and evaluation
(M & E) process based on these indicators.
There should be an objective, third-party review of
current operating mines to determine compliance
with responsible mining. A more comprehensive
compilation of best practices should also be prepared
to equip the government, mining companies, and
143 G.R. No. 127882 (2004) (Phl.).

affected communities with information to make

rational decisions.
Continuous capacity building - In order to support
stable, rational decision-making, the government
must have the capacity to implement:
o Natural resources valuation;
o Options for benefit-sharing schemes at the
national, local, and community level;
o Measuring local economic impact;
o Measuring impact on community values and
culture;
o Establishing systematic monitoring and
evaluation of environmental, social, and economic
impacts at all levels (project, local, and national);
and
o A genuine and inclusive process of obtaining free
and prior informed consent.
The Philippine Development Plan acknowledges that
"government capacity for resource management is
wanting"'44 and that "Ensuring the equitable and just
distribution of benefits from extracted mineral
resources remains to be a challenge... Currently,
there is no standard resource and environment valua-
tion. There is a need to have a cost-benefit analysis
and standard parameters that will consider all
relevant values (including nonmarket values)."1 45
Risk assessment should also be prioritized. The
Philippines is located in the Pacific Ring of Fire. The
same tectonic activity that makes it a prime location
for economically valuable metals also means that the
144 Philippine Development Plan for 2011-2016 309(2011).

145 Philippine Development Plan 298.
country is prone to geophysical hazards such as

earthquakes and volcanic eruptions.
Setting a clear action plan with a reasonabletimetable and
sufficient budget and personnel support-The actions
needed must be set in a dear, doable, time-bound,
and adequately funded action plan, so that all
stakeholders can reasonably expect accomplishment
of the reform goals. The reforms are only as good as
their implementation. Government has to provide
the manpower needed to implement the reforms both
at national and local government levels.
For decades, the shortcomings in governance have been side-
stepped, and the government has assumed that approval of
mining operations can continue because capacity-building is
taking place. This is no longer acceptable. As shown above,
with the inadequacies of regulation and capacity for
governance, the government has no rational basis for making
decisions on mining.
8.4.4 Executive Order No. 79146
Executive Order No. 79 lays down very clearly the roadmap
on mining sector reforms, including guidelines on
environmental protection and responsible mining. The
"Mining EO," as it has come to be known, is a good and
progressive issuance that merits congratulations. This
Aquino mining policy, as illustrated by the EO, is not perfect,
but good. In fact it is very good.
The EO is a definitive step in the right direction for the
mineral industry, as it changes paradigms for the better:
146 Antonio La Vifla and Alaya de Leon, Mining E.O. not perfect, but very good. in
Thought Leaders, in Rappler.com (2012), http://www.rappler.com/thought-
leaders/8385-mining-e-o-not-perfect,-but-very-good.
Section 1, providing additional areas closed to mining

operations or "no-go" areas. While the Mining Act (RA
7942) already provides for some no-go areas, including
those prohibited under the National Integrated Protected
Areas System (NIPAS, RA 7586)-and which the EO
reiterates-the Presidential issuance provides 3 new
categories of areas where mineral operations are
prohibited:
- Prime agricultural lands, in addition to lands covered
by the Comprehensive Agrarian Reform Law,
including plantations and areas devoted to valuable
crops, and strategic agriculture and fisheries
development zones and fish refuge and sanctuaries;
- Tourism development areas, such as Puerto Princesa,
San Vicente-El Nido-Taytay, and Southern Palawan
within the Palawan Tourism Cluster, and Camarines,
Catanduanes, and Albay-Sorsogon-Masbate within the
Bicol Tourism Cluster, as per the National Tourism
Development Plan; and
- Other critical areas, island ecosystems, and impact
areas of mining. This is a very powerful argument why
Mindoro, Sibuyan, Camiguin, Siquijor, Romblon and
similar islands should be considered off limits to
mining.
Section 4 imposing a moratorium on the grant of mineral
agreements pending legislation on rational revenue
sharing for the industry. The imposition of this
moratorium is based on the conclusion that the current
system does not favor equitable distribution of the benefits
derived from mining. The invocation of Section 1, Article
XII of the 1987 Constitution in the EO's preamble - a
provision not usually invoked in the context of
environmental protection and as such is revolutionary -
says as much about the need to re-assess and re-align the
myriad advantages of our mineral wealth.
This provision indicates that the President means business

-invoking the said constitutional provision on "a more
equitable distribution of opportunities, income, and
wealth; a sustained increase in the amount of goods and
services produced by the nation for the benefit of the
people; an expanding productivity as the key to raising the
quality of life for all, especially the underprivileged; and
that in the pursuit of these goals, all sectors of the economy
and all regions of the country shall be given optimum
opportunity to develop."
These all point to a clear intent to ensure that the

Philippine mineral industry serves all citizens and not just
the interests of a few, that it benefits the majority and
raises the quality of life for all.
In addition, the EO contains four other revolutionary

provisions related to the management of mineral agreements
and revenues derived therefrom:
* Section 5 on the establishment of mineral reservations,

setting aside potential and future mining areas for
strategic industries identified in the Philippine
Development Plan and the National Industrialization
Plan, subject to consultation with all concerned
stakeholders.
* Section 6 on competitive public bidding over mining
rights and tenements including government-owned
and all expired tenements, for which the Mines and
Geosciences Bureau shall not only prepare bid
packages and guidelines but also ensure that social
acceptability for the project has been secured.
* Section 8 on the development of value-adding
activities and downstream industries for the mineral
sector, which shall be laid out in a national program
and road map to be formulated by relevant
government agencies, the mining industry, and other
stakeholders.
* Section 14 on "Improving Transparency in the Industry
by Joining the Extractive Industries Transparency
Initiative." To improve transparency, accountability,
and governance in the sector, the government shall
support and commit participation in the Extractive

Industries Transparency Initiative (EITI). The DENR is
mandated to ensure that mechanisms are established
to operationalize the EITI in the mining sector, in
consultation and coordination with the mining
industry and other concerned stakeholders.
These provisions provide a paradigm shift in how the
country's mineral reserves and resources are treated and
exploited, which over the years seemed typified as a "come
one, come all" system for investors. The Mining EO sets
initial steps for exercising more stringent controls on the
utilization of mineral resources, the grant of rights for their
utilization, and the flow of revenues from such.
Section 11, providing initial measures to improve the
management and development of small-scale mining
(SSM). Strict attention to the extremely problematic and
complex issue of managing small-scale mining in the
country is long overdue. This provision once and for all
clarifies the statutes that govern the industry, reiterates
that SSM must be undertaken only within the confines of
delineated Minahang Bayan, and addresses the need for
training and capacity building of SSM operators, among
others.
President Aquino should be praised for issuing specific
directives to his Cabinet to immediately implement the EO.
We particularly laud the directive to the DENR to "Desist
from processing mining applications in Palawan and
enhance the strict implementation and periodic review of the
Strategic Environmental Plan for Palawan with the Palawan
Council for Sustainable Development."
Directives to complete cultural mapping of indigenous
peoples' areas and address their concerns and recognition of
their rights, and to address the overlapping tasks and
functions of departments involved in mining, are also crucial
points for implementation and respond to some of the most

basic systemic weaknesses of governing the mineral
industry.
While the EO departs from "business as usual" practices in
the mineral industry, there is concern over Section 12 on the
"consistency" of local ordinances with the Constitution and
national laws.
Admittedly, it is an improvement from an earlier iteration of
the EO which referred to the "primacy" of national over local
legislation. However, a more appropriate term would have
been "harmonization" between the 2, because such assumes
that local government units (LGUs) act in good faith and
generally exercise their power in accordance with national
laws.
Still, in spite of its language, Section 12 can be interpreted as

allowing LGUs to impose restrictions on mineral activities
within their jurisdiction- including mining bans- if they are
able to demonstrate that such legislation is reasonable within
the environmental, social, and economic circumstances
surrounding a proposed project, and as long as this is
supported by risk assessments and evidence-based studies,
and appropriate consideration of the precautionary
principle.
With EO 79, a new mining policy has been effectively put

into place by a President who clearly means business. The
challenge now, as always whenever our country enacts or
adopts progressive legislation and policies, is implemen-
tation.
Mining's Golden Mean

Aristotle stands out as one of the most influential and
appreciated Greek philosophers. In the menu of ideas in
moral philosophy, his concept of the "golden mean" is one of
the most practical; it still as relevant now, nearly 2500 years
after Aristotle first articulated it, as it was then: "Virtue is
concerned with passions and actions, in which excess is a
form of failure, and so is defect, while the intermediate is
praised and is a form of success; and being praised and being
successful are both characteristics of virtue. Therefore virtue is
a kind of mean, since, as we have seen, it aims at what is
intermediate."
Applying Aristotle's golden mean to the challenge of mining
in the Philippines, is a middle ground on mining possible? Is
there such a thing as responsible mining that conforms to
sustainable development? Or is mining always destructive of
nature and communities? What is the golden mean in mining?
Metal arises from Earth in the Chinese wu xing cycle of

elements. It is the instrument by which Water (the succeeding
element) is captured and harnessed, and Wood (the element
opposed) is cut down into lumber. Metal is therefore central to
the development of civilization, as we saw in the Bronze and
Iron Ages. Today, metal is one of the most important
economic resources, from the steel of skyscrapers and bridges,
to the rare earth metals used in semiconductors and
electronics. Thus, ideally, mining is an important component
of any national economy as it brings hard currency, elicits
investment, and generates jobs.
The situation in our country is, however, far from ideal. Weak
governance institutions and corruption compromise mining
governance, with environmental, safety, and human rights
regulations frequently ignored. Our mining claims system is
antiquated, allowing until July 2012 companies and
individuals to lay mineral claims on large swaths of Philip-
pine territory, and unnecessarily giving the impression that all
of the country is open for mining.

I believe that mining, and similar natural resources issues are
best seen and resolved through the prism of environmental
and social justice. For the record, I am not against mining per
se. I oppose mining that is environmentally destructive, and a
mining governance system that does not distribute benefits
properly. The latter is more important because if we solve the
inequity of revenue distribution in mining, we can ensure that
enough resources are set aside to minimize its negative
environmental and social impacts. This is true for both small-
scale (which I also do not endorse unconditionally because of
its environmental impacts and safety risks) and large-scale
mining.
The most important reform in mining governance is the
proper distribution of powers, responsibilities, and income
from the extraction of mineral resources. Thus, indigenous
peoples and local communities must have a voice in the
mining decisions and a big share of the revenue. Similarly,
local governments should have a major say on whether or not
mining should be allowed within their territory, and must
have a just share of the revenues. Where there is conflict
between national government and local governments,
mediation is the only recourse.
Many in the industry will acknowledge the bad environ-
mental legacy of mining, but they argue that responsible
mining is now possible. They point to global best practices in
environmental management and addressing social impacts
which when employed properly make mining consistent with
sustainable development. They are right. However, there are
places where mining should not be allowed, where the risk to
important biological, environmental and cultural resources
are too serious and cannot be mitigated adequately. Palawan,
given its unique biological diversity and its potential for
ecotourism, is such a place.
In El Filibusterismo, Jose Rizal's anti-hero Simoun funded his

attempt at insurgency using a chest of precious stones. Padre
Florentino, the friar to whom Simoun confessed as he was
dying, took the chest, cursed as it was being the inspiration
and tool for corruption and hatred, and threw it into the
Pacific Ocean, shouting: "May Nature guard you in her deep
abysses... When for some holy and sublime purpose man may
need you, God will in his wisdom draw you from the bosom
of the waves. Meanwhile, there you will not work woe, you
will not distort justice, you will not foment avarice!"
Just like Simoun's proverbial war chest, our rich mineral

resources, in a country compromised by corruption and
insufficient governance, can only result in woe, distorted
justice, and avarice. Just as steel must be tempered to achieve
its full strength and flexibility, mining governance requires
important reforms before the mining industry can be
entrusted with the national treasure chest. When we achieve
mining's golden mean, being endowed with mineral
resources will no longer be a curse causing conflict and
environmental destruction but, finally, becomes, as it should
be, blessing and bounty from our Earth.
Taken from:
10 May 2011, Manila Standard Today
Ground Zero of Mining

In many ways, Colorado is the ground zero of mining in the
United States. As early as 1859, gold was discovered in
Colorado; in addition, coal, gypsum, limestone, silver,
molybdenum, soda ash and sodium bicarbonate have been
and are mined there. According to the Colorado Mining
Association, mining contributes about $8 billion to the state's
economy. At the same time, mining in Colorado is not entirely
uncontroversial. The state is also known for its natural and
scenic beauty, and tourism is one of its major industries. In

2007 alone, it was reported that 28 million visitors visited the
State and spent $9.8 billion. For obvious reasons, mining is not
necessarily compatible with tourism and at times hard choices
had and have to be made in Colorado as to what land use is
preferred.
It is no different in the Philippines. While we are a highly

mineralized country, with substantial mineral deposits that are
still unexploited, the country is both densely populated and
environmentally stressed. I have walked on, driven through,
sailed around and have flown in most of our islands, and
everywhere I see lots of people in overstretched critical
ecosystems and natural resources. Because of this, any mining
decision will always be in the context of land use conflicts that
is then expressed politically, sometimes violently. Because of
this, mining cannot and never will be an easy nor fast decision
in this country.
Today, in the Philippines, the ground zero of mining is

Tampakan, South Cotabato, where the largest untapped
copper deposit in Southeast Asia can be found. Sagittarius
Mines Incorporated (SMI), a company majority-owned by
global mining firm Xstrata Plc., has the legal right to develop
the Tampakan deposit. Already, the US$5-6 billion project has
been delayed by a decade when the legality of the Mining Act
of 1995 and in particular the Financial and Technical
Assistance Agreement (FTAA) held by SMI was questioned
before and eventually upheld by the Supreme Court. With the
legal case out of the way and the mining feasibility done, what
was left for SMI to do was to get an environmental clearance
for the Tampakan project.
Unfortunately for the project, in June 25, 2010, then-outgoing
governor of South Cotabato Daisy Fuentes signed into law the
province's Environmental Code. Passed by an overwhelming
9-1 vote in the provincial legislature, arguably a strong
manifestation of the will of the people of the province, the
Code bans the use of open-pit mining (the technology that will
be used to extract the minerals from Tampakan).
The legality of the South Cotabato Environmental Code has

been assailed by critics who point out that the Mining Act,
which does not prohibit open-pit mining, should prevail over
the provincial Environmental Code. They argue that a national
law is superior to a local ordinance. Under the Mining Act, the
DENR (through the Mines and Geosciences Bureau) is the
primary agency responsible for the management and use of
the State's mineral resources and its Secretary is given the
authority to enter into mineral agreements on behalf of the
government. On the other hand, under the Local Government
Code (LGC), local government units are authorized to come
up with measures intended to protect the general welfare.
With such a mandate, the Sangguniang Panlalawigan
(provincial legislature) can enact ordinances to protect the
environment. In addition, Section 27 of the LGC requires prior
approval of the Sanggunian (council) concerned before any
national project, including mining projects, is implemented
within their territorial jurisdiction.
How then can we move forward -on Tampakan specifically

and on mining generally? The burden is principally on the
national government, which must now balance all legitimate
interests. The DENR Secretary, with the full support of the
President, should establish a transparent, participatory and
credible multi-stakeholder negotiation and consensus-building
process for this. Because it seems inevitable that this matter
will be taken to court, the parties could also take advantage of
the provision in the new Rules of Procedure for Environmental
Cases, which allows of a "consent decree"-a judicially-
approved settlement between the parties that could stipulate
the conditions under which the Tampakan project could
proceed. This is certainly a more viable and less costly (money
and time wise) option compared to a protracted legal battle
where the outcome is far from certain.
Whether such a negotiation happens in a judicial or other

context, I strongly suggest that independent third party
facilitators who have the trust of all the stakeholders assist
them. In that process, the following outcomes should be
sought: the promotion of sustainable development; the

encouragement of responsible investments; a revenue sharing
regime that is fair to host communities and to the country; the
uncompromising protection of the environment; and respect
for local autonomy and indigenous peoples' rights (most of
the Tampakan mineral deposit is in the ancestral domain of
indigenous peoples). While it is likely that not all these
outcomes will be achieved, if most or a majority of them are
achieved, it would not be so bad. Not perfect, not at all, but
maybe good.
Taken from:
14 September 2010, Manila Standard Today
CHAiER NINE
Waste Management and Sanitation
In January 1999, respondents concerned residents of Manila
Bay filed a complaint before the Regional Trial Court (RTC)
in Imus, Cavite against several government agencies, for the
cleanup, rehabilitation, and protection of the Manila Bay. The
complaint alleged that the water quality of the Manila Bay
had fallen way below the allowable standards set by law,
specifically Presidential Decree (PD) No. 1152 or the
Philippine Environment Code.147 In their individual causes of
action, respondents alleged that the continued neglect of
petitioner agencies in abating the pollution of the Manila Bay
constitutes a violation of, among others:
(1) Respondents' constitutional right to life, health, and a
balanced ecology;
(2) The Environment Code (PD 1152);
(3) The Pollution Control Law (PD 984);
(4) The Water Code (PD 1067);
(5) The Sanitation Code (PD 856);
(6) The Illegal Disposal of Wastes Decree (PD 825);
(7) The Marine Pollution Law (PD 979);
(8) Executive Order No. 192;
(9) The Toxic and Hazardous Wastes Law (Republic Act
No. 6969);
(10) Civil Code provisions on nuisance and human
relations;
147 MMDA v. Concerned Residents of Manila Bay, December 18, 2008, G.R. No.
171947-48 (2008) (Phil.).
455
(11) The Trust Doctrine and the Principle of

Guardianship; and
(12) International Law.
The respondents, as plaintiffs, prayed that petitioners be
ordered to clean up the Manila Bay and to submit to the RTC
a concerted concrete plan of action for such purpose.
In an attempt to dramatize the urgency of the need for

petitioner-agencies to comply with their statutory tasks, the
Supreme Court cited the Asian Development Bank-
commissioned study on the garbage problem in Metro
Manila. 148 As there reported, the garbage crisis in the
metropolitan area is as alarming as it is shocking. Some
highlights of the report are as follows:
1. As early as 2003, three land-filled dumpsites in Metro
Manila-the Payatas, Catmon and Rodriquez
dumpsites-generate an alarming quantity of lead and
leachate or liquid run-off. Leachate are toxic liquids that
flow along the surface and seep into the earth and
poison the surface and groundwater that are used for
drinking, aquatic life, and the environment.
2. The high level of fecal coliform confirms the presence of
a large amount of human waste in the dump sites and
surrounding areas, which is presumably generated by
households that lack alternatives to sanitation. To say
that Manila Bay needs rehabilitation is an under-
statement.
3. Most of the deadly leachate, lead and other dangerous
contaminants and possibly strains of pathogens seeps
untreated into ground water and runs into the Marikina
and Pasig River systems and Manila Bay.
Given the above perspective, it is good to note how difficult

and daunting it is to clean up Manila Bay from the
148 The results of which are embodied in the The Garbage Book.
abovementioned solid waste materials. Wastes of such

nature are not present in the bay at one particular point in
time only but said wastes are continuously produced by their
common sources. In the language of the Supreme Court, "the
cleanup and/or restoration of the Manila Bay is only an
aspect and the initial stage of the long-term solution. The
preservation of the water quality of the bay after the
rehabilitation process is as important as the cleaning phase. It
is imperative then that the wastes and contaminants found in
the rivers, inland bays, and other bodies of water be stopped
from reaching the Manila Bay. Otherwise, any cleanup effort
would just be a futile, cosmetic exercise, for, in no time at all,
the Manila Bay water quality would again deteriorate below
the ideal minimum standards set by PD 1152, RA 9275, and
other relevant laws."
For this reason that the Supreme Court ultimately decided to

impose a "continuing mandamus" upon petitioner-agencies
to periodically and regularly clean-up the Manila Bay. Under
what our judicial discipline describes as "continuing
mandamus", the Court may, under extraordinary circum-
stances, issue directives with the end in view of ensuring that
its decision would not be set to naught by administrative
inaction or indifference. For instance, in India, the doctrine of
continuing mandamus was used to enforce directives of the
court to clean up the length of the Ganges River from
industrial and municipal pollution.
In ruling on the petition, the Supreme Court cited the
landmark case of Oposa vs. Factora,the same Court stated that
the right to a balanced and healthful ecology need not even
be written in the Constitution for it is assumed, like other
civil and political rights guaranteed in the Bill of Rights, to
exist from the inception of mankind and it is an issue of
transcendental importance with intergenerational impli-
cations. Thus, in analogy, the court in the present case
ratiocinated that even assuming the absence of a categorical

legal provision specifically prodding petitioners to clean up
the bay, they and the men and women representing them
cannot escape their obligation to future generations of
Filipinos to keep the waters of the Manila Bay clean and clear
as humanly as possible.
9.2 LegalAnalysis
Special Laws and Legal Mandates
The special laws governing and the legal mandates of

agencies applicable to the proper management and disposal
of solid wastes are as clear as spring-clean water. In the case
of the dean-up of Manila Bay, the Supreme Court cited some
of those laws and legal mandates, which included among
others:
i. Sec. 3, Par. C, RA 7924 creating the Metro Manila
Development Authority (MMDA) which mandates:
Solid waste disposal and management which include
formulation and implementation of policies,
standards, programs and projects for proper and
sanitary waste disposal. It shall likewise include the
establishment and operation of sanitary land fill and
related facilities and the implementation of other
alternative programs intended to reduce, reuse and
recycle solid waste.
ii. Sec. 19, RA 9275 or the Clean Water Act of 2004
which mandates the DENR to comply with the
following:
a) Prepare a National Water Quality Status report
within twenty-four (24) months from the
effectivity of this Act: Provided, That the
Department shall thereafter review or revise and
publish annually, or as the need arises, said

report;
b) Prepare an Integrated Water Quality Manage-
ment Framework within twelve (12) months
following the completion of the status report;
c) Prepare a ten (10) year Water Quality Manage-
ment Area Action Plan within 12 months
following the completion of the framework for
each designated water management area. Such
action plan shall be reviewed by the water quality
management area governing board every five (5)
years or as need arises.
iii. Sec. 48 of RA 9003 or the Ecological Solid Waste
Management Act of 2000 which prohibits the
following acts:
(1) Littering, throwing, dumping of waste matters in
public places, such as roads, sidewalks, canals,
esteros or parks, and establishment, or causing or
permitting the same;
(2) Undertaking activities or operating, collecting or
transporting equipment in violation of sanitation
operation and other requirements or permits set
forth in established pursuant;
(3) The open burning of solid waste;
(4) Causing or permitting the collection of non-
segregated or unsorted wastes;
(5) Squatting in open dumps and landfills;
(6) Open dumping, burying of biodegradable or non-
biodegradable materials in flood prone areas;
(7) Unauthorized removal of recyclable material
intended for collection by authorized persons;
(8) The mixing of source-separated recyclable
material with other solid waste in any vehicle,
box, container or receptacle used in solid waste

collection or disposal;
(9) Establishment or operation of open dumps as
enjoined in this Act, or closure of said dumps in
violation of Sec. 37;
(10) The manufacture, distribution or use of non-
environmentally acceptable packaging materials;
(11) Importation of consumer products packaged in
non-environmentally acceptable materials;
(12) Importation of toxic wastes misrepresented as
"recyclable" or "with recyclable content";
(13) Transport and dumplog in bulk of collected
domestic, industrial, commercial, and institution-
al wastes in areas other than centers or facilities
prescribe under this Act;
(14) Site preparation, construction, expansion or
operation of waste management facilities with-
out an Environmental Compliance Certificate
required pursuant to Presidential Decree No.
1586 and this Act and not conforming with the
land use plan of the LGU;
(15) The construction of any establishment within
two hundred (200) meters from open dumps or
controlled dumps, or sanitary landfill; and
(16) The construction or operation of landfills or any
waste disposal facility on any aquifer, ground-
water reservoir, or watershed area and or any
portions thereof.
iv. Sec. 4 of PD 601 or the Revised Coast Guard Law of
1974 which mandates the Philippine Coast Guard to
apprehend violators who:
a. discharge, dump x x x harmful substances from or
out of any ship, vessel, barge, or any other
floating craft, or other man-made structures at
sea, by any method, means or manner, into or

upon the territorial and inland navigable waters
of the Philippines;
b. throw, discharge or deposit, dump, or cause,
suffer or procure to be thrown, discharged, or
deposited either from or out of any ship, barge, or
other floating craft or vessel of any kind, or from
the shore, wharf, manufacturing establishment, or
mill of any kind, any refuse matter of any kind or
description whatever other than that flowing
from streets and sewers and passing therefrom in
a liquid state into tributary of any navigable
water from which the same shall float or be
washed into such navigable water; and
c. deposit x x x material of any kind in any place on
the bank of any navigable water or on the bank of
any tributary of any navigable water, where the
same shall be liable to be washed into such
navigable water, either by ordinary or high tides,
or by storms or floods, or otherwise, whereby
navigation shall or may be impeded or obstructed
or increase the level of pollution of such water.
v. Secs. 17 and 20 of the Environment Code (PD 1152)
which mandates the DENR to perform the
following duties:
Section 17. Upgrading of Water Quality.-Where the
quality of water has deteriorated to a degree where
its state will adversely affect its best usage, the
government agencies concerned shall take such
measures as may be necessary to upgrade the quality
of such water to meet the prescribed water quality
standards.
Section 20. Clean-up Operations.-It shall be the
responsibility of the polluter to contain, remove and
clean-up water pollution incidents at his own

expense. In case of his failure to do so, the
government agencies concerned shall undertake
containment, removal and clean-up operations and
expenses incurred in said operations shall be charged
against the persons and/or entities responsible for
such pollution.
The special laws governing and the legal mandates of

agencies applicable to the proper management and disposal
of solid wastes are as clear as spting-clean water. In the case
of the dean-up of Manila Bay, the Supreme Court cited some
of those laws and legal mandates. In relation to the above
laws and legal mandates, the order of the Supreme Court to
the government agencies concerned with the clean-up,
rehabilitation, and protection of the Manila Bay is quite
simple. To quote the said order:
'WHEREFORE, judgment is hereby rendered ordering the
abovenamed defendant-government agencies to dean up,
rehabilitate, and preserve Manila Bay, and restore and
maintain its waters to SB level (Class B sea waters per
Water Classification Tables under DENR Administrative
Order No. 34 [1990]) to make them fit for swimming, skin-
diving, and other forms of contact recreation. In particular:
a) Pursuant to Sec. 4 of EO 192, assigning the

DENR as the primary agency responsible for
the conservation, management, development,
and proper use of the country's environment
and natural resources, and Sec. 19 of RA 9275,
designating the DENR as the primary
government agency responsible for its
enforcement and implementation, the DENR is
directed to fully implement its OperationalPlan
for the Manila Bay Coastal Strategy for the
rehabilitation, restoration, and conservation of
the Manila Bay at the earliest possible time. It
is ordered to call regular coordination meet-

ings with concerned government departments
and agencies to ensure the successful imple-
mentation of the aforesaid plan of action in
accordance with its indicated completion
schedules.
b) Pursuant to Title XII (Local Government) of
the Administrative Code of 1987 and Sec. 25 of
the Local Government Code of 1991, the DILG,
in exercising the President's power of general
supervision and its duty to promulgate
guidelines in establishing waste management
programs under Sec. 43 of the Philippine
Environment Code (PD 1152), shall direct all
LGUs in Metro Manila, Rizal, Laguna, Cavite,
Bulacan, Pampanga, and Bataan to inspect all
factories, commercial establishments, and
private homes along the banks of the major
river systems in their respective areas of
jurisdiction, such as but not limited to the
Pasig-Marikina-San Juan Rivers, the NCR
(Parafiaque-Zapote, Las Pifles) Rivers, the
Navotas-Malabon-Tullahan-Tenejeros Rivers,
the Meycauayan-Mar.lao-Obando (Bulacan)
Rivers, the Talisay (Bataan) River, the Imus
(Cavite) River, the Laguna De Bay, and other
minor rivers and waterways that eventually
discharge water into the Manila Bay; and the
lands abutting the bay, to determine whether
they have wastewater treatment facilities or
hygienic septic tanks as prescribed by existing
laws, ordinances, and rules and regulations. If
none be found, these LGUs shall be ordered to
require non-complying establishments and
homes to set up said facilities or septic tanks
within a reasonable time to prevent industrial
wastes, sewage water, and human wastes from
flowing into these rivers, waterways, esteros,
and the Manila Bay, under pain of closure or

imposition of fines and other sanctions.
c) As mandated by Sec. 8 of RA 9275, the MWSS
is directed to provide, install, operate, and
maintain the necessary adequate waste water
treatment facilities in Metro Manila, Rizal, and
Cavite where needed at the earliest possible
time.
d) Pursuant to RA 9275, the LWUA, through the
local water districts and in coordination with
the DENR, is ordered to provide, install,
operate, and maintain sewerage and sanitation
facilities and the efficient and safe collection,
treatment, and disposal of sewage in the
provinces of Laguna, Cavite, Bulacan,
Pampanga, and Bataan where needed at the
earliest possible time.
e) Pursuant to Sec. 65 of RA 8550, the DA,
through the BFAR, is ordered to improve and
restore the marine life of the Manila Bay. It is
also directed to assist the LGUs in Metro
Manila, Rizal, Cavite, Laguna, Bulacan,
Pampanga, and Bataan in developing, using
recognized methods, the fisheries and aquatic
resources in the Manila Bay.
f) The PCG, pursuant to Secs. 4 and 6 of PD 979,
and the PNP Maritime Group, in accordance
with Sec. 124 of RA 8550, in coordination with
each other, shall apprehend violators of PD
979, RA 8550, and other existing laws and
regulations designed to prevent marine
pollution in the Manila Bay.
g) Pursuant to Secs. 2 and 6-c of EO 513 and the
International Convention for the Prevention of
Pollution from Ships, the PPA is ordered to
immediately adopt such measures to prevent
the discharge and dumping of solid and liquid
wastes and other ship-generated wastes into
NA'noNAL LAWS AND POUCIES I 465
the Manila Bay waters from vessels docked at
ports and apprehend the violators.
h) The MMDA, as the lead agency and
implementor of programs and projects for
flood control projects and drainage services in
Metro Manila, in coordination with the
DPWH, DILG, affected LGUs, PNP Maritime
Group, Housing and Urban Development
Coordinating Council (HUDCC), and other
agencies, shall dismantle and remove all
structures, constructions, and other encroach-
ments established or built in violation of RA
7279, and other applicable laws along the
Pasig-Marikina-San Juan Rivers, the NCR
(Parafiaque-Zapote, Las Pifias) Rivers, the
Navotas-Malabon-TuUahan-Tenejeros Rivers,
and connecting waterways and esteros in Metro
Manila. The DPWH, as the principal imple-
mentor of programs and projects for flood
control services in the rest of the country more
particularly in Bulacan, Bataan, Pampanga,
Cavite, and Laguna, in coordination with the
DILG, affected LGUs, PNP Maritime Group,
HUDCC, and other concerned government
agencies, shall remove and demolish all
structures, constructions, and other encroach-
ments built in breach of RA 7279 and other
applicable laws along the Meycauayan-
Marilao-Obando (Bulacan) Rivers, the Talisay
(Bataan) River, the Imus (Cavite) River, the
Laguna De Bay, and other rivers, connecting
waterways, and esteros that discharge
wastewater into the Manila Bay. In addition,
the MMDA is ordered to establish, operate,
and maintain a sanitary landfill, as prescribed
by RA 9003, within a period of one (1) year
from finality of this Decision. On matters
within its territorial jurisdiction and in
connection with the discharge of its duties on
the maintenance of sanitary landfills and like

undertakings, it is also ordered to cause the
apprehension and filing of the appropriate
criminal cases against violators of the
respective penal provisions of RA 9003, Sec. 27
of RA 9275 (the Clean Water Act), and other
existing laws on pollution.
i) The DOH shall, as directed by Art. 76 of PD
1067 and Sec. 8 of RA 9275, within one (1) year
from finality of this Decision, determine if all
licensed septic and sludge companies have the
proper facilities for the treatment and disposal
of fecal sludge and sewage coming from septic
tanks. The DOH shall give the companies, if
found to be non-complying, a reasonable time
within which to set up the necessary facilities
under pain of cancellation of its environmental
sanitation clearance.
j) Pursuant to Sec. 53 of PD 1152, Sec. 118 of RA
8550, and Sec. 56 of RA 9003, the DepEd shall
integrate lessons on pollution prevention,
waste management, environmental protection,
and like subjects in the school curricula of all
levels to inculcate in the minds and hearts of
students and, through them, their parents and
friends, the importance of their duty toward
achieving and maintaining a balanced and
healthful ecosystem in the Manila Bay and the
entire Philippine archipelago.
k) The DBM shall consider incorporating an
adequate budget in the General Appro-
priations Act of 2010 and succeeding years to
cover the expenses relating to the cleanup,
restoration, and preservation of the water
quality of the Manila Bay, in line with the
country's development objective to attain
economic growth in a manner consistent with
the protection, preservation, and revival of our
marine waters.
NAn~oNAL LAwS AND POLICIES I467
1) The heads of petitioners-agencies MMDA,
DENR, DepEd, DOH, DA, DPWH, DBM, PCG,
PNP Maritime Group, DILG, and also of
MWSS, LWUA, and PPA, in line with the
principle of "continuing mandamus," shall,
from finality of this Decision, each submit to
the Court a quarterly progressive report of the
activities undertaken in accordance with this
Decision."
9.3 Policy Analysis
Compliance with the Supreme Court Order

Despite the clarity of the legal mandates and the simplicity of
the orders of the Supreme Court to the government agencies
concerned, compliance to said legal mandates and court
orders is almost impossible. To illustrate, with respect to
point-source pollutants or pollutants originating from a
single, identifiable source, such as a discharge pipe from a
factory or sewage plant, the said agencies lacks the capacity,
as well as the facility to enforce said legal mandates and
court orders.
The various types of point-source pollutants found in waters
are as varied as the types of business, industry, agricultural,
and urban sources that produce them. Commercial and
industrial businesses use hazardous materials in manu-
facturing or maintenance, and then discharge various wastes
from their operations. The raw materials and wastes may
include pollutants such as solvents, petroleum products
(such as oil and gasoline), or heavy metals. Point sources of
pollution from agriculture may include animal feeding
operations, animal waste treatment jagoons, or storage,
handling, mixing, and cleaning areas for pesticides, ferti-
lizers, and petroleum. Municipal point sources might include
wastewater treatment plants, landfills, utility stations, motor
pools, and fleet maintenance facilities.
Basing on the scientific nature of point-source pollutants, it

seems that in order to eradicate the same, a highly-
sophisticated form of technology is required and apparently,
the agencies mandated to clean-up the Manila Bay do not
have the necessary resources in order to effectively comply
with the duties imposed on them by the law and by the
court. To minimize and even worse, to completely erase
pollution in the bay is a task that would certainly take a long
period of time and is absolutely not something which can be
done overnight.
On the other hand, as regards nonpoint-source pollutants or
those which do not originate from a single, direct source,
regulation of the same is as impossible as it is daunting.
Nonpoint-source pollution occurs as water moves across the
land or through the ground and picks up natural and
human-made pollutants, which can then be deposited in
lakes, rivers, wetlands, coastal waters, and even ground-
water. The water that carries nonpoint-source pollution may
originate from natural processes such as rainfall or snow-
melt, or from human activities such as crop irrigation or
lawn maintenance. Nonpoint-source pollution is usually
found spread out throughout a large area. It is often difficult
to trace the exact origin of these pollutants because they
result from a wide variety of human activities on the land as
well as natural characteristics of the soil, climate, and
topography. The most common nonpoint-source pollutants
are sediments, nutrients, microorganisms and toxics.
Sediment can degrade water quality by contaminating
drinking water supplies or silting in spawning grounds for
fish.149
149 Polluted Runoff. Nonpoint Source Pollution. U.S. Environmental Protection

Agency, Office of Water, http://www.epa.gov/OWOW/NPS/ (last visited
June 2012).
Preventing and controlling nonpoint-source pollution is

primarily accomplished through regulation under special
laws and voluntary watershed protection efforts of certain
environment groups. Best management practices and
pollution prevention can be applied both in the national and
in the local level to reduce and prevent nonpoint-source
pollution. Some activities are state responsibilities, perhaps,
such as ensuring that public lands are properly managed to
reduce soil erosion, or developing legislation to govern
chemical use. Many other regulatory approaches may be best
handled locally, through the Local Government Units
(LGUs), such as by zoning or erosion-control ordinances.
Each citizen can play an important role by being active in the
community, learning more about the local watershed,
practicing conservation, and by preventing pollution in
homes, yards, and neighborhoods. But all these recommend-
ed approaches are still extremely difficult to enforce due to
the lack of facilities and manpower on the part of the
government agencies concerned. Theoretically, these
suggested approaches are very promising and are impressed
with great merit but at the end of the day, it still boils down
to the implementation part and if no enforcement or
implementation is done, legislation of ways and means to
eradicate pollution would merely be an exercise in futility.
As was mentioned in a previous chapter, one of the solutions
for the problem of water pollution coming from industrial
sources is the application of "effluent standards". Effluent
standards refer to any legal restriction or limitation on
quantities, rates, and/or concentrations or any combination
thereof, of physical, chemical, or biological parameters of
effluent, which a person or point source is allowed to
discharge into a body of water. The use of these standards is
already being practiced in many jurisdictions all over the
world, including the Philippines. In fact, the DENR, by virtue
of Department Administrative Order 2008-20, has set effluent

standards to be followed by individuals and entities in order
to minimize the pollutants that are discharged into bodies of
water in the country.
However, the employment of effluent standards must not be
viewed in isolation. The particular circumstances of every
case must be taken into consideration before these standards
can be properly applied. The size, location, and carrying
capacity of a specific body of water must be considered
before it can be decided that the application of effluent
standards achieves its desired objective. In addition, the
number of existing factories, industrial facilities, and other
sources of pollution must also be looked into. Otherwise, the
application would be futile and water pollution will not be
mitigated. For instance, if there are many factories
surrounding a certain lake, even if all the discharges made
by these factories are within the prescribed standards, the
receiving body of water may still end up heavily polluted.
Apart from the application of effluent standards, another
way of resolving the problem of water pollution according to
experts is the application of "ambient standards" or such
standards which regulate the allowable amount of materials,
as a concentration of pollutants, in water. The standard is set
to protect against anticipated adverse effects on human
health or welfare, wildlife, or the environment, with a
margin of safety in the case of human health. However, same
as in the case of effluent standards, the problem with the
application of ambient standards is the fact that even if
pollution in the bay can be eradicated at the soonest possible
time, it is still unknown how long said bay can recover and
be brought to its original state prior to the pollution. As a
result, even with the best efforts on the part of the
government agencies concerned, it is still unknown to them
if and when they can comply with the Supreme Court order.
9.4 Further Discussion

The Philipine Legal Framework on
Solid Waste Management
The legal and institutional framework that we have in our
jurisdiction, which is supposed to work its way around the
problems of pollution and improper waste management, is
viewed by several environmentalists, lawyers, and scholars
alike as overly complicated as it tries (and thereby fails) to
address an even more complex environmental problem. The
complexity of the problem is brought about by various
"unknowns," which the legal and institutional frameworks
have not succeeded in resolving. These "unknowns" include
the carrying capacity of the body of water, the specific
sources of pollution, and the particular technological means
applicable.
The special laws concerned with proper waste management
and the eradication of pollution are in need of more detailed
and more specific provisions on how to unearth such
unknowns. While it is true that it is the duty of the
implementing agencies to properly inform themselves of
whatever is not sufficiently provided by the statute because
theoretically, said agencies have the technical knowhow and
the expertise for the effective enforcement of the provisions
of the special laws mandating them, there is still an apparent
need of a solution that is based on reasonable science. In
other words, in order for these special laws to be properly
implemented, the same must be backed up with long years
of scientific research and study.
How Culture Affects the Environment
The existence of practices that trigger pollution and the
improper management of wastes is greatly impacted by the
specific culture and behavior of a community. For instance,
Marawi City, a predominantly Muslim city at the heart of
Lanao del Sur in Mindanao, was declared by the DENR as
one of the dirtiest and most polluted cities in the Philippines.
The question now before us is this: despite the 99% Muslim
population of Marawi City (Muslims being believed to be
very conscious of personal cleanliness and hygiene), why is it
still so dirty? In order to address this question, we should
probe into the cultural and economic background of Marawi
as a city.
Marawi City lies along Lake Lanao, Mindanao's largest
freshwater lake. Years of unchecked human and industrial
activity in that area have resulted in poor water quality,
diminished aquatic resources, increased health risks etc. A
2007 study undertaken by the city LGU reported Marawi's
volume of waste generation at 68,400 kilos per day, almost
70% of which is biodegradable. Most lake dwelling
communities depend on this freshwater body for food and
income, not to mention recreation. There are also reports of
harmful algae blooms (HABs), which appear as
discolorations in the water. These are caused by excess of
nutrients (phosphorous, carbon or nitrogen) from
agricultural and industrial activity, and can have serious
health consequences once they enter the food chain. 150
Moreover, the economy of Marawi City is largely based on
agriculture, trading and exporting. Most industries in the
city are agriculture-oriented. They include rice and corn,
hollow block manufacturing, goldsmithing, and saw milling.
Hence, there's no wondering why the city is heavily
polluted.
However, as a step in institutionalizing efforts to address
waste management problems in Mindanao, Marawi City's
N Philippine Environmental Governance Project Website, Manra Ciiy,

www.ecogov.com/marawicity (last visited June 2012).
NATlONAL LAWS AND POUClES I 473
Muslim religious sector, through the Ulama, has committed
to act in support of the local government's Integrated Solid
Waste Management program in the context of a solid waste
management (SWM) orientation specially conducted for the
group last June 2009. The SWM orientation for Muslim
religious leaders was initiated by the City Government of
Marawi and the Philippine Environmental Governance
Project (EcoGov), a project of the U.S. Agency for Intern-
ational Development (USAID) in partnership with the
Department of Environment and Natural Resources (DENR).
Over 50 leaders from the ranks of the Aleem, Aleema, and
the city local government participated in this event, which
highlighted principles of Islamic environmental manage-
ment, as culled from the environmental sourcebook Al
Khalifa (Mhe Steward).
Al Khalifa promotes environmental management in Muslim
communities, and has been endorsed by the Assembly of the
Darul Ifta of the Philippines. It delves into the religious
consciousness of Muslims in preaching that maintaining
ecological balance is a duty of each Muslim, being God's
khalifa (steward) on Earth. 'We should be including waste
management in the topics of our weekly radio program for
women, in the khutba (sermon during the Friday
congregational prayer), and broadcast this to the children of
our madrasah (Arabic schools)," Aleema Rocaya S. Guinal
told other leaders present. The Muslim religious leaders
gained an appreciation of proper waste management
practices, such as waste segregation, composting, and reuse
of materials. For the first time, concrete steps to these
practices were demonstrated in their midst, which boosted
their eagerness to share firsthand information to their
community members and to initiate small-scale SWM
programs in mosques and madrasah.
In order to arrive at a sensible conclusion, let us look at

several Muslim principles, as embodied in the Koran, and
see how these relate to the Muslims' view on the protection
of the environment. Take this excerpt for example:
And you certainly know alreadythefirstform of creation:why
then do you not celebrate His praises?
See you the seed that you sow in the ground?
Is it you that cause it to grow, or are We the cause?
Were it our will, We could crumble it to dry powder, and you
would be left in wonderment,
[Saying], 'We are indeed left with debts ffor nothing];
"Indeed are we shut out [of the fruits of our labour]."
See you the water which you drink?
Do you bring it down [in rain]from the cloud or do We?
Were it our will, We could make it salt [and unpalatable];then
why do you not give thanks?
See you the fire which you kindle?
Is it you who grow the tree which feeds the fire, or do We grow
it?
It is We Who make it a means to remind [you of Us], and an
article of comfort and conveniencefor the denizens of deserts.
Then celebrate with praises the name of your Sustainer,the
Supreme!
According to Yusuf Ali the message conveyed in this verse is
the core of Revelation; it explains the Hereafter: All things
were created by God; are maintained by Him; and will go
back to Him. But the point of special interest to man is that
man will also be brought back to God and is answerable to
Him, and to Him alone. He further says that the concept of
Divine unity, as was represented in the above verse, is the
basis and essence of Islam. Divine unity is apparent in the
unity of humanity and of nature. God's vice-regents on the
earth, the holders of His trust, are therefore primarily
responsible for preserving the unity of creatures, the integral
wholeness of the world, the flora and fauna, and wildlife and
natural environment. Thus, "unity", "trust", and "respon-
sibility" are the three basic concepts of Islam. These

principles are at the same time the chief pillars of the Islamic
environmental ethic. They form also the fundamental values
taught by the Qur'an. Thus, when we read the Qur'an's
verses about the earth, we find that they suggest strongly
that it is for man a peaceful place, which he should take heed
of. Thus, the Qur'an draws our attention to nature and to the
events that occur in it.151
Let us also look at this other verse:
For that We pourforth water in abundance,
And We split the earth infragments,
And producetherein corn,
And grapes and nutritiousplants,
And olives and dates,
And enclosedgardens,dense with lofty trees,
And fruits andfodder -
For use and convenience to you and your cattle.
According to Dr. Ibrahim Ozdemir, in his interpretation of
the above verse the earth is also important with regard to the
concept of mutual relations. Human beings are created from
two of its elements: earth and water. Thus, if man becomes
alienated from the earth, he becomes alienated from his very
nature. He is not the lord and ruler of the earth; he is a
humble member of it. The superior qualities and faculties he
possesses require not that he irresponsibly consumes and
destroys its beauties and resources, but that he acts in
awareness of his great responsibility towards them.152
As regards cleanliness, Islam indeed considers cleanliness to
be one of the fundamentals of belief. It thus makes a direct
151 Ibrahim Ozdemir, Ph. D., An Islamic Appraoch to the Environment,available at:
www.crescentlife.com/slamicapproach (last visited June 2012).
1M
connection between belief and cleanliness. It is for this reason

that throughout the ages cleanliness has been one of the
Muslims' most striking characteristics. In one chapter of the
Koran, Prophet Muhammad said: "Cleanliness is half of
belief." Some of the earliest verses revealed to him by God
were:
0 you wrapped up [in amantle)!
Arise and deliver your warning!
And your Sustainermagnify!
And your garmentskeep free from stain!
And all abomination shun!
It may be noted here that by requiring the cleanliness of
clothes, on the one hand physical cleanliness is being
emphasized, and by demanding that "abomination" is
shunned, on the other moral and spiritual purity are being
underlined. Thus, in Islam, physical and moral and spiritual
cleanliness form an indivisible whole. Muslims should
neglect neither the cleanliness of their surroundings, houses,
the roads they use, and parks and gardens, nor any sort of
moral and spiritual cleanliness.
It is clear then that Muslims are obliged to always be clean in
every respect, both physically and spiritually. According to
Ozdemir, a Muslim who pays attention to physical
cleanliness, that is, who keeps his body, house, and
surroundings clean, will not neglect the purity of his heart
and spirit and his moral purity. It is common knowledge that
the most important condition for protecting ourselves
against illness is being clean and living in a clean
environment. According to Prophet Muhammad, what
preventive medicine tells us is nothing different to this. As
the hereunder verse says:
God loves those who turn to Him constantly and He loves those who
keep themselves pure and clean.
Taking all the abovementioned principles into account,

accompanied by efforts on the part of the local government,
Marawi City is possibly on its way to a cleaner and safer
future.
The Acceptability of Technological Fixes
The Philippines has employed numerous means and has
accepted various technological fixes that aim to promote
proper waste management and sanitation. Most of these
means and technological fixes were first introduced in other
parts of the globe and now they have made their way into
our country. An example of these is the "ecological sanitation
system urine diverting dry toilet" (UDDT) or "eco-san
bowls" for short, which was a project started in 2003 by
Center for Advanced Philippine Studies (CAPS). This was a
poverty alleviation program under the Millennium
Development Goal (MDG) whose objective was to propagate
eco-san in areas where water supply is a problem. The eco-
san bowls, widely used in China, Mexico, Nepal, South
Africa and Sweden, hit the Philippines to replace the flush-
type toilets and to "prevent pollution and disease caused by
human excreta."'I
Dan Lapid, executive director of CAPS, said the eco-san
approach is very simple. It is a waste segregation principle
anchored on the "don't mix" approach which is applied on
human waste. The eco-san bowl has two holes that separate
the urine from the human excreta. Once fell on the ground,
these go into two separate containers. The excreta and the
urine are then transferred on designated storage areas. There
is no need for a household to build a septic tank, as supply of
ash is required to cover the excreta.
15 Maria Congee Gomez Eco-San Toilet Bowls Make Its Mark in the Philippines
(2009).
Based on the findings of CAPS, the human excreta can be
stored from 6 to 12 months while the urine, high in nitrogen,
phosphorous and potassium (NPK) and with proper mix of
water, at four weeks before it can be applied one month
before harvest time."But not all would welcome the eco-san
approach," averred Dan Lapid, enumerating the required
preparations leading to it.
On top of all, are rigid series of orientation for the

beneficiaries and local government officials. The seminars
are focused on changes in attitude, sanitation habits and
views regarding human excreta. Lapid said everyone has
gotten used to the 'flush-and-forget' style that the eco-san
may not be a welcome thing. He stressed that a major
component of the orientation is to develop a change in
attitude toward one's human excreta. At that time, Lapid
reported the eco-san success story of San Fernando City, La
Union. Mayor Mary Jane Ortega initiated eco-san to her
constituents after she learned of it through files of winning
non-government organization projects.
The mayor, known for her pro-environment stand, inquired

about the project and asked CAPS to bring in some eco-san
bowls to the city. She said she would install them in areas
where communities are not dependent on water supply.
Intensive seminars ensued after the mayor's inquiry and by
the end of the orientation, four hundred (400) eco-san bowls
were installed in the city's urban poor and coastal areas.
Lapid recalled the people's initial reaction was rejection.
"They were not used to the smell of human excreta. Thus,
they all wanted led to avoid the toilets which were delivered
in their areas." But governance in San Fernando was
something this city was proud of. Its locals have that
sprinkling of complete trust on their mayor that did not take

long to shed their apprehensions on the new approach.- 4
However, commercial toilet bowl manufacturers are not
enthusiastic in making eco-san bowls even if it was stressed
that this would be on top of the standards. The random
interviews with standard bowl manufacturers stressed only
one thing-absence of niche market in the urban areas. It did
not help to say that they would be pushing for advocacy to
help the environment, as preoccupation was solely on
revenues.
Another means currently employed in the Philippines in
order to alleviate the problems caused by improper
management and disposal of solid wastes is waste segre-
gation. Segregation of wastes is done by separating one's
trash into biodegradable and non-biodegradable, thus, in
effect, there will be two garbage bins which would contain
the segregated trash. Creative modifications have also been
done on the simple segregation into biodegradable and non-
biodegradable. Some institutions would classify trash into
three categories, namely, paper, plastics, and cans. Others
would categorize them into recyclables and non-recyclables.
No matter what system of segregation is employed, the
important thing is that the objective of proper waste
management is achieved.
Local Government Units in Metro Manila have already
employed waste segregation in their garbage collection
systems. In Quezon City, for example, Mayor Herbert
Bautista orders QC residents to segregate their trash first as a
prerequisite before the garbage collector gets them. In this
manner, people are forced to properly segregate the garbage
they produce; otherwise, their homes will be filled with
15 Id.
uncollected trash. If there is one underlying problem in the

employment of waste segregation is the fact that even
though the trash are segregated at the first instance, i.e., in
the homes, offices, commercial establishments, these
segregated trash sometimes still get commingled with each
other when they reach the dumpsite. Whenever this
happens, the purpose of waste segregation is defeated.
Another means of disposing solid wastes which is widely
practiced in the Philippines but is frowned upon by most
environmentalists is backyard burning. Backyard burning
occurs when people burn household trash on their own
property. Typical household trash burned consists of items
that would typically be sent to a landfill or recycled. This
includes paper, cardboard, food scraps, plastics, yard
trimmings, and leaves. Burning can occur in a burn barrel,
usually a 55-gallon drum, a homemade burn box, wood
stove, outdoor boiler, or open pit. In the past, the trash
burned by residents, especially those in rural areas, consisted
mainly of paper and wood. The makeup of trash has
changed within the past 50 years and now includes coated
paper, plastics, and other materials manufactured by
humans.
The reason why backyard burning is not widely-accepted by
environmentalists, as well as by a substantial number of
citizens, is quite obvious. It is because backyard burning can
emit pollutants such as hazardous air pollutants (HAPs),
particle pollution, and volatile organic compounds (VOCs).
These pollutants can contribute to health problems that may
affect homeowners, their families, their neighbors, and the
community. While national and local regulations limit the
amount of backyard burning, dangerous releases of HAPs
can occur if a homeowner does not comply with these
regulations. Burning trash produces many pollutants,
including dioxins, formaldehyde and hexachlorobenzene.
Regulation of Open Dumpsites

Last September 6, 2011, DENR Secretary Ramon Paje
announced that four hundred thirty-five (435) local
government units (LGUs) around the country continue to
maintain open and controlled dumpsites. In a statement, Paje
said that the DENR is already working with the Office of the
Ombudsman and the Department of Interior and Local
Government (DILG) to make sure that these LGUs would
comply with Republic Act 9003 or the Ecological Solid Waste
Management Act, which set the deadline for the closure of
open and controlled dumpsites in 2004. "We are already
working closely with DILG and the Ombudsman to resolve
this issue of low, if not noncompliance of local chief
executives, to the requirements of the Ecological Solid Waste
Management Act," Paje explained to members of Ecowaste
Coalition, which staged a protest at the DENR office in
Quezon City yesterday.
The coalition, which pushes for the 3Rs- reduce, reuse and
recycle -in waste management, is calling for the immediate
closure and rehabilitation of all dumpsites in the country.
This came in the wake of the deadly collapse of an open
dumpsite in Baguio City at the height of Typhoon 'Mina,"
which left several people dead and displaced.Paje said that
the DENR has already issued final notices to the 435 LGUs
and the Office of the Ombudsman has initially issued
subpoena duces tecum to the LGUs. He said that the twin
moves are "a step closer to filing administrative charges
against noncompliant LGU officials under RA 7160 or the
Local Government Code, and send out a signal to those who
continue to ignore the risks to their own constituents' health
and property."' 55
m Philippine Star, 435 LGUS Operating Dumpsites Face Sanctions (Sept. 6,2011),
www.philstar.com/lgu-opendumpsite Oast visited June 2012).
An "open dumpsite" is a land disposal site at which solid

wastes are disposed of in a manner that does not protect the
environment, is susceptible to open burning, and is exposed
to the elements, disease vectors and scavengers. These
unplanned heaps of uncovered wastes, often burning and
surrounded by pools of stagnated polluted water, rat and fly
infestations with domestic animals roaming freely and
families of scavengers picking through the wastes is not only
an eyesore but a great environmental hazard. As a default
strategy for municipal solid waste management, open dumps
involve indiscriminate disposal of waste and limited
measures to control operations, including those related to the
environmental impacts of landfills. Very often, open
dumping sites are swamp lands or low-lying areas with the
wastes being used for reclamation. Liners are rarely used and
little consideration is given to the water table and
groundwater pollution and/or gas migration.
Problems of shortage of cover, lack of leachate collection and
treatment, inadequate compaction, poor site design, and
many scavengers working at the site are common. The high
percentage of organics, combined with much plastic, which
forms layers when compacted, contributes to the build-up of
methane gases at dumps. Fires often break out and workers
are made ill by the gases. In cities where plastic shopping
bags are used to put out wastes for collection, waste pickers
sometimes set refuse on fire in order to recover valuable
inorganic items. Spontaneous fires also break out in dumps.
This greatly adds to the air pollution from dumps. The roads
leading to dumps and those on dumps themselves are often
elementary, becoming impassable in the wet season. Since
most large dumps have hundreds of extra workers in the
form of waste pickers, and the municipal workers are not
provided with protective gloves, the health risks at dumps
are much higher than in sanitary landfills in industrialized
countries. These workers are exposed to risks from human
feces, slaughterhouse wastes, landfill gases, toxic dust,

infectious biomedical wastes, snakes, scorpions, broken
glass, and explosions. Thus, these dump sites are essentially
uncontrolled, creating considerable health, safety, and
environmental problems.
Solid waste management services in most of the Countries
comes a poor third in municipal priorities, after water supply
and health services. However they are under pressure from
their own legislation to move away from the current disposal
practices of open dumping to sanitary landfilling. Such a
change is unlikely to occur in the nearest future due to
limitations on finance, shortage of technical resources and
lack of institutional arrangements.15 6 It is advisable to have
small incremental improvements in landfill design and
operation rather than an attempt to make a single large
technological leap. This approach should also match the
affordability and sustainability considerations.
Making Money Out of Trash
On July 2000, tragedy literally befell a slum community in
Payatas, Quezon City when a hill of garbage overlooking the
area caved in, killing two hundred eighteen (218) people and
leaving three hundred (300) families homeless. Despite this,
many people still consider Payatas as a land of opportunities,
especially those who make money out of scavenging and
selling trash. Every day, before dawn breaks over Quezon
City, a small army of human scavengers make their way
from the nasty slums they call home to the gates of the city's
biggest garbage dump. Armed with headlamps and wicker
baskets they make the slow walk to the top of the Payatas
dumpsite. Rising some 30 to 40 meters (98 to 131 feet) from
156 Michael Pugh, Landfill Technology in Developing Countries, Waste Management

58-59 (1999).
the valley floor the mound of garbage covers 10 hectares and
takes in sweeping views of the surrounding countryside. 1 7 It
also overlooks the old Payatas dumpsite, which was closed
at the end of 2000 because of the landslide.
Just after four in the morning, the first trucks start to arrive
carrying their precious cargo, which will be picked over by
teams of scavengers looking for anything they can recycle.
Over the next 17 hours some 430 to 450 garbage trucks will
deposit an estimated 1,200 tons of garbage at the site. For the
30,000 residents who live around the garbage-mountain it is
their only source of income. The teams of scavengers who
pick over each truckload of refuse are lucky if they make one
hundred pesos a day for their efforts. Down in the slums
cottage industries thrive as thousands of people, including
children, sort through baskets brought down from the
mound. Rusted inner springs from discarded mattresses are
used as fences around shacks made from scrap pieces of
wood and iron sheeting. The fences are used to dry paper
and plastic for recycling.
Foam rubber is washed and dried before being glued in
strips to make mattresses. Covers are made for around P12
each and the finished product sold in local markets for P100
or more. A broken concrete bridge crosses a narrow river
where boys wash plastic in putrid water. It is dried and
bundled up and sold for recycling. In one yard are piles of
discarded backpacks that will be washed, repaired and later
sold in markets in the poorer districts of Metro Manila.
Drinking water is brought in by truck daily and sold to
residents and some dwellings have electricity.158
257Karl Wilson, A Mountain of Opportunityfor Payatas Savengers, Manila Times

(March 6,2006).
18 d.
In 1993, the Vincentian Missionaries Social Development

Foundation, under the leadership of Father Norberto
Carcellar and the late Brother Oquet Anayan, started a
Savings and Credit Program for the scavengers of the
Payatas dumpsite. At that time, the dump occupied only five
of its present 20 hectares. The Foundation's program catered
mainly to women, using a modified Grameen Bank approach
that emphasized savings rather than outside funding as a
source of capital. The Foundation organized the borrowers
into a people's organization, the Lupang Pangako Urban
Poor Association, Inc. (LUPAI), registered in June 1997 with
the Securities and Exchange Commission of the
Philippines.159 From an initial seed capital of one hundred
thousand pesos (PhP100,000; around US$ 2,000), donated by
a government charity agency in 1993, LUPAI now manages
around PhP15 million (US$ 300,000) in savings accounts for
its 7,000 members. Today, many LUPAI members engage in
microenterprises that provide goods and services to the
scavengers and other residents of the area surrounding the
dumpsite.
Another charity group which has installed livelihood
projects in Payatas is the Mother Ignacia National Social
Apostolate Center (MINSAC). There are two (2) operating
projects which were opened by MINSAC in the area: the
Basahan Project and the Sewing Project.160 In order to make
these projects sustainable, a strategy called "subcontracting"
was used. Subcontracting is done when a company (called
contractor) places an order of other companies (called
subcontractor) for the production of parts, and components
to be incorporated into a product to be sold by the
contractor. Hence, with this strategy, the sewers and Basahan
IN Eugenio Gonzaes, From Wastes to Assets: The Scavengers of Payatas (2003).

160 Eugenio Gonzales, From Wastes to Assets: The Scavegers of Payaas(2003).
workers do the labor and they are being paid for it. In a few
months of operation, these projects already created an
impact on the families who are being involved in the
operation. According to them, the amount that they are
earning from the projects somehow helps them in sustaining
the families' basic needs. Also because of it their skills in
sewing and making different rugs are humanizing. They are
not just earning but they are also learning.
CHAFrER TEN
Industrial, Air and Water Pollution
10.1 Environmental Situationer

A few years ago, DENR ordered the temporary closure of a
certain recycling plant in Quezon Province on suspicion that
the plant operators were dumping toxic and hazardous
wastes into the surrounding land and water bodies. Inside
the compound, DENR inspectors discovered numerous steel
and plastic drums piled on top of each other, plastic square
bins containing various kinds of toxic wastes and stacks of
contaminated rags. Moreover, in one area of the plant
premises, workers wearing gas masks were seen putting
hardened chemical waste in a sack filled with sawdust and
sand. The closure of the plant was prompted by the
admission of a certain persons who were caught dumping
toxic wastes in several sites in the province. They admitted
that the wastes originated from the said recycling plant's
compound.
According to the persons caught, the drums were being
given to them for free by a person who works at the plant,
upon condition that they will be the one to get rid of its
contents. The couple said they accepted the offer because of
financial opportunities after they were assured that the drum
contents would not harm them as long as they were buried
under the ground. Some of the wastes, according to the
couple, were even buried by them in their own backyard.
The couple further disclosed that once they dispose of the
drum contents, they sell the steel drum, which weighs 18 kg.
each at PhP18 per kg. The plastic drums cost PhP250 up to
PhP500 each when empty. The couple claimed innocence
when informed that what they had been doing was against
487
the law. The plant officials, on the other hand, denied being
associated with the couple, as well as the latter's allegations
against their company.
The dumps were found littered with hundreds of plastic and

steel drums containing different kinds of toxic chemical
waste, some of them spilling out into creeks and farms. The
chemicals were being discharged into the dumping ground
and then covered when full. Some of the containers have
labels that read "hazardous waste" and have skull and bone
signs on them.
10.2 LegalAnalysis
In order to completely understand the policy of the State
against substances and wastes that are hanmul to health and
the environment, R.A. 6969 defines for us what "hazardous
substances" and "hazardous wastes" are. According to the
law, "hazardous substances" shall refer to substances that
present either:
(1) short-term acute hazards, such as acute toxicity by
ingestion, inhalation or skin absorption, corrosivity or
other skin or eye contact hazards or the risk of fire or
explosion; or
(2) long-term environmental hazards, including chronic
toxicity upon repeated exposure, carcinogenicity
(which may in some cases result from acute exposure
but with a long latent period), resistance to
detoxification process such a biodegradation, the
potential to pollute underground or surface waters,
or aesthetically objectionable properties such as
offensive odors.
On the other hand, hazardous wastes" shall be defined as
substances that are without any safe commercial, industrial,
agricultural or economic usage and are shipped, transported
NA-nONAL LAWS AND POUClES 1 489
or brought from the country of origin for dumping or

disposal into or in transit through any part of the territory of
the Philippines. The term "hazardous wastes" shall also refer
to by-products, side-products, process residues, spent
reaction media, contaminated plant or equipment or other
substances from manufacturing operations, and as consumer
discards of manufacture products.
Based on the definitions provided by the law, the adverse
effects of these substances and wastes both to human health
and the environment are undeniable.
Rights and Obligations Created
A number of rights and obligations are created by the R.A.
with respect to specific persons and/or entities concerned. As
to manufacturers, processors, or importers of 'new' chemical
substances or mixtures, before such chemical substance or
mixture can be manufactured, processed, or imported for the
first time, the following information shall be submitted: the
name of the chemical substance or mixture, its chemical
identity and molecular structure, proposed categories of use,
an estimate of the amount to be manufactured, processed or
imported; processing and disposal thereof, and any test data
related to health and environmental effects which the
manufacturers, processors or importers have. However, if
such substances or mixtures are to be produced in small
quantities solely for experimental or research and develop-
mental purposes and are to exist temporarily and which
have no human or environmental exposure such as those
which exist as a result of chemical reaction in the manu-
facture or processing of a mixture of another chemical
substance, their manufacturers, processors, or importers
shall be exempt from the abovementioned submission.
Manufacturers, processors, or importers shall also be
required to have their chemical substances or mixtures tested
and shall shoulder the costs of such testing upon finding by

the DENR: (1) of a reason to believe that the chemical
substances or mixture may present an unreasonable risk to
health or the environment or there may be substantial
human or environmental exposure thereto; and (2) that there
is insufficient data and experience for determining or
predicting the health and environmental effects of the
chemical substance and the testing of the chemical substance
or mixture is necessary to develop such data.
With respect to the public in general, it shall have the right of
access to records, reports, or information concerning
chemical substances and mixtures including safety data
submitted, data on emission or discharge into the
environment, and such documents shall be available for
inspection or reproduction during normal business hours.
However, the DENR may consider a record, report or
information or particular portions thereof confidential and
may not be made public when such would divulge trade
secrets, production or sales figures or methods, production
or processes unique to such manufacturer, processor or
distributor, or would otherwise tend to affect adversely the
competitive position of such manufacturer, processor or
distributor.
In addition to the obligations created by the law as
mentioned in the preceding paragraphs, Sec. 13 of the Act
explicitly prohibits the following acts: (a) to knowingly use a
chemical substance or mixture which is imported,
manufactured, processed or distributed in violation of the
Act or its implementing rules and regulations or orders; (b)
failure or refusal to submit reports, notices or other
information, access to records, as required by the Act, or
permit inspection of establishment where chemicals are
manufactured, processed, stored or otherwise held; (c)
failure or refusal to comply with the pre-manufacture and
NAIONAL LAWS AND POUCIES 1 491
pre-importation requirements; and (d) to cause, aid or

facilitate, directly or indirectly, in the storage, importation, or
bringing into Philippine territory, including its maritime
economic zones, even in transit, either by means of land, air
or sea transportation or otherwise keeping in storage any
amount of hazardous and nuclear wastes in any part of the
Philippines.
Penal Provisions
According to Sec. 14 of the Act, the penalty for any person
who violates Sec. 13 (a), (b), and (c) is imprisonment of six (6)
months and one day to six (6) years and one day and a fine
ranging from Six hundred pesos (PhP600.00) to Four
thousand pesos (PhP4,000.00) and such person shall not be
covered by the Probation Law. If the offender is a foreigner,
he or she shall be deported and barred from any subsequent
entry into the Philippines after serving his or her sentence. In
case the violation was committed by a partnership,
corporation, association or any juridical person, the partner,
president, director or manager who shall consent to or shall
knowingly tolerate such violation shall be directly liable and
responsible for the act of the employee and shall be
criminally liable as a co-principal. If the offender is a
government official or employee, he or she shall, in addition
to the abovementioned penalties, be deemed automatically
dismissed from office and permanently disqualified from
holding any elective or appointive position.
On the other hand, the penalty of imprisonment of twelve
(12) years and one day to twenty (20) years, shall be imposed
upon any person who shall violate section 13 (d) of the Act. If
the offender is a foreigner, he or she shall be deported and
barred from any subsequent entry into the Philippines after
serving his or her sentence. In the case of corporations or
other associations, the penalties mentioned in the few
preceding paragraphs shall be imposed upon the managing
492 i PHILIPPINE LAW AND ECOLOGY
partner, president or chief executive in addition to an

exemplary damage of at least Five hundred thousand pesos
(PhP500,O00.O0). If it is a foreign firm, the director and all
officers of such foreign firm shall be barred from entry into
the Philippines, in addition to the cancellation of its license to
do business in the Philippines. If the offender is a
government official, the same rule set forth in the preceding
paragraph shall apply.
Furthermore, the law states that every penalty imposed for
the unlawful importation, entry, transport, manufacture,
processing, sale or distribution of chemical substances or
mixtures into or within the Philippines shall carry with it the
confiscation and forfeiture in favor of the Government of the
proceeds of the unlawful act and instruments, tools or other
improvements including vehicles, sea vessels, and aircrafts
used in or with which the offense was committed. Chemical
substances so confiscated and forfeited by the Government at
its option shall be turned over to the Department of
Environment and Natural resources for safekeeping and
proper disposal.
In addition, the person or firm responsible or connected with
the bringing or importation into the country of hazardous or
nuclear wastes shall be under obligation to transport or send
back said prohibited wastes. Any and all means of
transportation, including all facilities and appurtenances that
may have been used in transporting to or in the storage in
the Philippines of any significant amount of hazardous or
nuclear wastes shall at the option of the government be
forfeited in its favor.
Administrative Accountability
Moreover, in all cases of violations of the Act, it shall be
within the authority of the DENR Secretary to impose an
administrative fine of not less than PhPO,O00 but not more
than PhP50,O00 upon any person or entity found guilty

thereof.
10.3 Policy Analysis
General Powers and Responsibilities of the DENR
R.A. 6969 expressly enumerates the functions, powers, and

responsibilities of the DENR in relation to the regulation and
control of hazardous substances and wastes. Pursuant to one
of the Act's general objectives, first among DENR's
responsibilities is to keep an updated inventory of chemicals
that are presently being manufactured or used, indicating,
among others, their existing and possible uses, quality, test
data, names of firms manufacturing or using them, and such
other information as the Secretary may consider relevant to
the protection of health and the environment. Such
responsibility is in consonance with one of the fundamental
aims of the law, which is to identify the respective liabilities
of persons and entities who shall act in violation of its
provisions and to impose upon them specific obligations
relative to the management and control of hazardous
substances and wastes. Moreover, it shall be within the
powers of the DENR to require chemical substances and
mixtures that present unreasonable risk or injury to health or
to the environment to be tested before they are manufactured
or imported for the first time, as well as chemical substances
that are already being manufactured, and to evaluate the
characteristics of such chemicals after they are tested to
determine their toxicity and the extent of their implications
on health and the environment.
It shall also be the function of the DENR to conduct
inspection of any establishment in which chemicals are
manufactured, processed, stored or held before or after their
commercial distribution and to make recommendations to
the proper authorities concerned, upon finding of particular
irregularities in the course of the activities in which these

establishments are usually engaged. Another power vested
in the DENR by the Act is the authority to enter into
contracts and make grants for research, development, and
monitoring of chemical substances and mixtures, in
pursuance of the Act's long-term objective, which is to be
able to achieve advancements in research and study for the
purpose of saving the environment from possible destruction
and to protect the people's health and general welfare. It
shall also be well within the DENR's authority to confiscate
or impound chemicals found not falling within said acts
cannot be enjoined except after the chemicals have been
impounded and to monitor and prevent the entry, even in
transit, of hazardous wastes and their disposal into the
country. Furthermore, it shall be the corollary duty of the
DENR to disseminate information and conduct educational
awareness campaigns on the effects of chemical substances,
mixtures and wastes on health and environment, which is
once again in accordance with one of the Act's general
objectives, which is to educate the public about the hazards
and risks brought by toxic substances.
In addition, the Implementing Rules and Regulations of RA
6969 (DENR Administrative Order No. 1992-29) provides
that the Secretary of DENR may validly delegate his powers
and functions and/or appoint an Environmental Protection
Officer. The Secretary shall have the power to amend or
revoke said delegated authorities.
Functions of Other Concerned Agencies
The law also grants the DENR the right to call on any
department, bureau, office, agency, state university or
college, and other instrumentalities of the government for
assistance in the form of personnel, facilities, and other
resources as the need arises in the discharge of its functions.
As a matter of fact, the law creates an "Inter-Agency
Technical Advisory Council" attached to the DENR which

shall be composed of the DENR Secretary as head of the
Council and officials of other government agencies as
members. Among these officials are the Secretary of Health,
Secretary of Science and Technology, Secretary of National
Defense, Secretary of Trade and Industry, Secretary of
Foreign Affairs, and Secretary of Labor and Employment.
The basic functions of the Council include assisting the
DENR in the preparation and updating of the inventory of
chemical substances and mixtures that fall within the
coverage of the Act and conducting the preliminary
evaluation of the characteristics of chemical substances and
mixtures to determine their toxicity and effects on health and
the environment and make the necessary recommendations
to the DENR.
10.4 The Clean AirAct
The Clean Air Act, or Republic Act no. 8749, expressly
recognized certain rights of citizens with a significant
pronouncement to the right to breathe clean air. It has also
identified the sources of pollution and provided for their
emission standards.
SEC. 4. Recognition of Rights. -Pursuant to the above-
declared principles, the following rights of citizens are
hereby sought to be recognized and the State shall seek to
guarantee their enjoyment:
[a] The right to breathe clean air;
[b] The right to utilize and enjoy all natural resources
according to the principles of sustainable develop-
ment;
[c] The right to participate in the formulation,
planning, implementation and monitoring of
environmental policies and programs and in the
decision-making process;
[d] The right to participate in the decision-making

process concerning development policies, plans
and programs projects or activities that may have
adverse impact on the environment and public
health,
[e] The right to be informed of the nature and extent
of the potential hazard of any activity, undertaking
or project and to be served timely notice of any
significant rise in the level of pollution and the
accidental or deliberate release into the atmos-
phere of harmful or hazardous substances;
[f] The right of access to public records which a
citizen may need to exercise his or her rights
effectively under this Act;
[g] The right to bring action in court or quasi-judicial
bodies to enjoin all activities in violation of
environmental laws and regulations, to compel the
rehabilitation and cleanup of affected area, and to
seek the imposition of penal sanctions against
violators of environmental laws; and
[h] The right to bring action in court for compensation
of personal damages resulting from the adverse
environmental and public health impact of a
project or activity.
xxx
SEC. 5. Definitions.- As used in this Act:
a) "Air pollutant" means any matter found in the

atmosphere other than oxygen, nitrogen, water
vapor, carbon dioxide, and the inert gases in their
natural or normal concentrations, that is detri-
mental to health or the environment, which
includes, but not limited to smoke, dust, soot,
cinders, fly ash, solid particles of any kind, gases,
fumes, chemical mists, steam and radioactive
substances;
b) "Air pollution" means any alteration of the
physical, chemical and biological properties of the
atmospheric air, or any discharge thereto of any
liquid, gaseous or solid substances that will or is

likely to create or to render the air resources of the
country harmful, detrimental, or injurious to
public health, safety or welfare or which will
adversely affect their utilization for domestic,
commercial, industrial, agricultural, recreational,
or other legitimate purposes;
xxx
f) "Department" means the Department of Environ-
ment and Natural Resources;
xxx
SEC. 16. Permits.-Consistent with the provisions of this
Act, the Department shall have the authority to issue
permits as it may determine necessary for the prevention
and abatement of air pollution.
Said permits shall cover emission limitations for the
regulated air pollutants to help attain and maintain the
ambient air quality standards. These permits shall serve as
management tools for the LGUs in the development of
their action plan.
SEC. 17. Emission Quotas.-The Department may allow
each regional industrial center that is designated as special
airshed to allocate emission quotas to pollution sources
within its jurisdiction that qualify under an environmental
impact assessment system programmatic compliance
program pursuant to the implementing rules and regula-
tions of Presidential Decree No. 1586.
SEC. 18. FinancialLiabilityfor Environmental Rehabilitation.-
As part of the environmental management plan attached to
the environmental compliance certificate pursuant to
Presidential Decree No. 1586 and rules and regulations set
therefor, the Department shall require program and project
proponents to put up financial guarantee mechanisms to
finance the needs for emergency response, clean-up
rehabilitation of areas that may be damaged during the
program or project's actual implementation. Liability for
damages shall continue even after the termination of a

program or project, where such damages are clearly
attributable to that program or project and for a definite
period to be determined by the Department and incorpo-
rated into the environmental compliance certificate.
Financial liability instruments may be in the form a trust
fund, environmental insurance, surety bonds, letters of
credit, as well as self-insurance. The choice of the
guarantee instruments shall furnish the Department with
evidence of availment of such instruments.
xxx
SEC. 19. Pollution From Stationary Sources.-The Depart-

ment shall, within two (2) years from the effectivity of this
Act, and every two (2) years thereafter, review, or as the
need therefore arises, revise and publish emission
standards, to further improve the emission standards for
stationary sources of air pollution. Such emission
standards shall be based on mass rate of emission for all
stationary source of air pollution based on internationally
accepted standards, but not be limited to, nor be less
stringent than such standards and with the standards set
forth in this section. The standards, whichever is
applicable, shall be the limit on the acceptable level of
pollutants emitted from a stationary source for the
protection of the public's health and welfare.
xxx
Pursuant to Sec. 8 of this Act, the Department shall prepare
a detailed action plan setting the emission standards or
standards of performance for any stationary source the
procedure for testing emissions for each type of pollutant,
and the procedure for enforcement of said standards.
Existing industries, which are proven to exceed emission
rates established by the Department in consultation with
stakeholders, after a thorough, credible and transparent
measurement process shall be allowed a grace period of
eighteen (18) months for the establishment of an

environmental management system and the installation of
an appropriate air pollution control device: Provided, That
an extension of not more than twelve (12) months may be
allowed by the Department on meritorious grounds.
SEC. 20. Ban on Incineration.-Incineration, hereby defined
as the burning of municipal, biomedical and hazardous
waste, which process emits poisonous and toxic fumes is
hereby prohibited; Provided, however, That the prohi-
bition shall not apply to traditional small-scale method of
community/neighborhood sanitation "siga", traditional,
agricultural, cultural, health, and food preparation and
crematoria; Provided, further, That existing incinerators
dealing with a biomedical wastes shall be out within three
(3) years after the effectivity of this Act; Provided, finally,
that in the interim, such units shall be limited to the
burning of pathological and infectious wastes, and subject
to close monitoring by the Department.
Local government units are hereby mandated to promote,
encourage and implement in their respective jurisdiction a
comprehensive ecological waste management that includes
waste segregation, recycling and composting.
With due concern on the effects of climate change, the
Department shall promote the use of state-of-the-art,
environmentally-sound and safe non-burn technologies for
the handling, treatment, thermal destruction, utilization,
and disposal of sorted, unrecyded, uncomposted, bio-
medical and hazardous wastes.
xxx
SEC. 21. Pollution from Motor Vehicles. -a) The DOTC shall
implement the emission standards for motor vehicles set
pursuant to and as provided in this Act. To further
improve the emission standards, the Department shall
review, revise and publish the standards every two (2)
years, or as the need arises. It shall consider the maximum
limits for all major pollutants to ensure substantial

improvement in air quality for the health, safety and
welfare of the general public.
xxx
b) The Department, in collaboration with the DOTC, DTI

and LGUs, shall develop an action plan for the control
and management of air pollution from motor vehicles
consistent with the Integrated Air Quality Framework.
The DOTC shall enforce compliance with the emission
standards for motor vehicles set by the Department.
The DOTC may deputize other law enforcement
agencies and LGUs for this purpose. To this end, the
DOTC shall have the power to:
[1] Inspect and monitor the emissions of motor

vehicles;
[2] Prohibit or enjoin the use of motor vehicles or a
class of motor vehicles in any area or street at
specified times; and
[3] Authorize private testing emission testing centers
duly accredited by the DTI.
c) The DOTC, together with the DTI and the Department,

shall establish the procedures for the inspection of
motor vehicles and the testing of their emissions for
the purpose of determining the concentration and/or
rate of pollutants discharged by said sources.
d) In order to ensure the substantial reduction of
emissions, from motor vehicles, the Department of
Trade and Industry (DI), together with the DOTC and
the Department shall formulate and implement a
national motor vehicle inspection and maintenance
program that will promote efficient and safe operation
of all motor vehicles. In this regard, the DTI shall
develop and implement standards and procedures for
the certification of training institutions, instructors and
facilities and the licensing of qualified private service
centers and their technicians as prerequisite for
NATnoNAL LAws AND POUClES I 501
performing the testing, servicing, repair and the

required adjustment to the vehicle emission system.
The DTI shall likewise prescribe regulations requiring
the disclosure of odometer readings and the use of
tamper-resistant odometers for all motor vehicles
including tamper-resistant fuel management systems
for the effective implementation of the inspection and
maintenance program.
SEC. 22. Regulation of All Motor Vehicles and Engines. -Any
imported new or locally-assembled new motor vehicle
shall not be registered unless it complies with the emission
standards set pursuant to this Act, as evidenced by a
Certificate of Conformity (COC) issued by the Department.
Any imported new motor vehicle engine shall not be
introduced into commerce, sold or used unless it
complies with emission standards set pursuant to this Act.
Any imported used motor vehicle or rebuilt motor vehicle

using new or used engines, major parts or components
shall not be registered unless it complies with the emission
standards.
In case of non-compliance, the importer or consignee may

be allowed to modify or rebuild the vehicular engine so it
will be in compliance with applicable emission standards.
No motor vehicle registration (MVR) shall be issued unless

such motor vehicle passes the emission testing requirement
promulgated in accordance with this Act. Such testing
shall be conducted by the DOTC or its authorized
inspection centers within sixty (60) days prior to date of
registration.
The DTI shall promulgate the necessary regulations
prescribing the useful life of vehicles and engines
including devices in order to ensure that such vehicles will
conform to the emissions which they were certified to
meet. These regulations shall include provisions for
ensuring the durability of emission devices.
SEC. 23. Second-Hand Motor Vehicle Engines. -Any import-

ed second-hand motor vehicle engine shall not be intro-
duced into commerce, sold or used unless it complies with
emission standards set pursuant to this Act.
xxx
SEC. 24. Pollution from smoking.-Smoking inside a public

building or an enclosed public place including public
vehicles and other means of transport or in any enclosed
area outside of one's private residence, private place of
work or any duly designated smoking area is hereby
prohibited under this Act. This provision shall be
implemented by the LGUs.
SEC. 25. Pollution from other mobile sources. -The Depart-

ment, in coordination with appropriate agencies, shall
formulate and establish the necessary standards for all
mobile sources other than those referred to in Sec. 21 of
this Act. The imposition of the appropriate fines and
penalties from these sources for any violation of emission
standards shall be under the jurisdiction of the DOTC.
xxx
SEC. 26. Fuels and Additives.-Pursuant to the Air Quality

Framework to be established under Section 7 of this Act,
the Department of Energy (DOE), co-chaired by the
(DENR), in consultation with the Bureau of Product
Standards (BPS) of the DTI, the DOST, the representatives
of the fuel and automotive industries, academe and the
consumers shall set the specifications for all types of fuel
and fuel-related products, to improve fuel composition for
increased efficiency and reduced emissions: Provided,
however, that the specifications for all types of fuel and
fuel-related products set-forth pursuant to this section shall
be adopted by the BPS as Philippine National Standards
(PNS).
NATnONAL LAWS AND POUClES I 503
The DOE shall also specify the allowable content of
additives in all types of fuels and fuel-related products.
Such standards shall be based primarily on threshold
levels of health and research studies. On the basis of such
specifications, the DOE shall likewise limit the content or
begin that phase-out of additives in all types of fuels and
fuel-related products as it may deem necessary. Other
agencies involved in the performance of this function shall
be required to coordinate with the DOE and transfer all
documents and information necessary for the implement-
ation of this provision.
Consistent with the provisions of the preceding para-

graphs under this section, it is declared that:
a) not later than eighteen (18) months after the

effectivity of this Act, no person shall manufacture,
import, sell, supply, offer for sale, dispense, trans-
port or introduce into commerce unleaded premium
gasoline fuel which has an anti-knock index (AKI) of
not less that 87.5 and Reid vapor pressure of not
more than 9 psi. Within six (6) months after the
effectivity of this Act, unleaded gasoline fuel shall
contain aromatics not to exceed forty-five percent
(45%) by volume and benzene not to exceed four
percent (4%) by volume; Provided, that by year 2003,
unleaded gasoline fuel should contain aromatics not
to exceed thirty-five percent (35%) by volume and
benzene not to exceed two percent (2%) by volume;
b) not later than eighteen (18) months after the
effectivity of this Act, no person shall manufacture,
import, sell, supply, offer for sale, dispense, trans-
port or introduce into commerce automotive diesel
fuel which contains a concentration of sulfur in
excess of 0.20% by weight with a cetane number of
index of not less than forty-eight (48): Provided, That
by year 2004, content of said sulfur shall be 0.05% by
weight; and
c) not later than eighteen (18) months after the
effectivity of this Act, no Person shall manufacture,
import, sell, supply, offer for sale, dispense,

transport or introduce into commerce industrial
diesel fuel which contains a concentration of sulfur
in excess of 0.30% (by weight).
Every two (2) years thereafter or as the need arises, the

specifications of unleaded gasoline and of automotive and
industrial diesel fuels shall be reviewed and revised for
further improvement in formulation and in accordance
with the provisions of this Act.
The fuels characterized above shall be commercially

available. Likewise, the same shall be the reference fuels
for emission and testing procedures to be established in
accordance with the provisions of this Act.
Any proposed additive shall not in any way increase
emissions of any of the regulated gases which shall
include, but not limited to carbon monoxide, hydro-
carbons, and oxides of nitrogen and particulate matter, in
order to be approved and certified by the Department.
SEC. 27. Regulation of Fuels and Fuel Additives. -The DOE,

in coordination with the Department and the BPS, shall
regulate the use of any fuel or fuel additive. No
manufacturer, processor or trader of any fuel or additive
may import, sell, offer for sale, or introduce into commerce
such fuel for additive unless the same has been registered
with the DOE. Prior to registration, the manufacturer,
processor or trader shall provide the DOE with the
following relevant information:
a) Product identity and composition to determine the

potential health effects of such fuel additives;
b) Description of the analytical technique that can be
used to detect and measure the additive in any
fuel;
c) Recommended range of concentration; and
d) Purpose in the use of the fuel and additive.
SEC. 34. Lead Agency. -The Department, unless otherwise
provided herein, shall be the primary government agency
responsible for the implementation and enforcement of this
Act. To be more effective in this regard, The Department's
Environmental Management Bureau (EMB) shall be
converted from a staff bureau to a line bureau for a period
of no more than two (2) years, unless a separate,
comprehensive environmental management agency is
created.
In the case of Henares v. LTFRB, the Supreme Court held

that the Clean Air Act is a general mandate, which does not
impose on Public Utility Vehicles the use of any particular
kind of fuel. Particular emphasis must be placed on the fact
that the right to clean air is established in this case.
Henares vs. Land Transportation Franchising and
Regulatory Board
G.R. No. 158290, October 23, 2006
QUISUMBING, J, ponente:
Petitioners challenge this Court to issue a writ of

mandamus commanding respondents Land Transportation
Franchising and Regulatory Board (LTFRB) and the
Department of Transportation and Communications
(DOTC) to require public utility vehicles (PUVs) to use
compressed natural gas (CNG) as alternative fuel.
Citing statistics from the Metro Manila Transportation and

Traffic Situation Study of 1996, the Environmental
Management Bureau (EMB) of the National Capital
Region, a study of the Asian Development Bank, 3 the
Manila Observatory and the Department of Environment
and Natural Resources (DENR) on the high growth and
low turnover in vehicle ownership in the Philippines,
including diesel-powered vehicles, two-stroke engine
powered motorcycles and their concomitant emission of air
pollutants, petitioners attempt to present a compelling case
for judicial action against the bane of air pollution and

related environmental hazards.
Petitioners allege that the particulate matters (PM)-
complex mixtures of dust, dirt, smoke, and liquid droplets,
varying in sizes and compositions emitted into the air from
various engine combustions -have caused detrimental
effects on health, productivity, infrastructure and the
overall quality of life. Petitioners particularly cite the
effects of certain fuel emissions from engine combustion
when these react to other pollutants. For instance,
petitioners aver, with hydrocarbons, oxide of nitrogen
(NOx) creates smog; with sulfur dioxide, it creates acid
rain; and with ammonia, moisture and other compounds,
it reacts to form nitric acid and harmful nitrates. Fuel
emissions also cause retardation and leaf bleaching in
plants. According to petitioner, another emission, carbon
monoxide (CO), when not completely burned but emitted
into the atmosphere and then inhaled can disrupt the
necessary oxygen in blood. With prolonged exposure, CO
affects the nervous system and can be lethal to people with
weak hearts.
Petitioners add that although much of the new power
generated in the country will use natural gas while a
number of oil and coal-fired fuel stations are being phased-
out, still with the projected doubling of power generation
over the next 10 years, and with the continuing high
demand for motor vehicles, the energy and transport
sectors are likely to remain the major sources of harmful
emissions. Petitioners refer us to the study of the
Philippine Environment Monitor 2002, stating that in four
of the country's major cities, Metro Manila, Davao, Cebu
and Baguio, the exposure to PM10, a finer PM which can
penetrate deep into the lungs causing serious health
problems, is estimated at over US$430 million. The study
also reports that the emissions of PMs have caused the
following:
" Over 2,000 people die prematurely. This loss is valued
at about US$140 million.
* Over 9,000 people suffer from chronic bronchitis,
which is valued at about US$120 million.
" Nearly 51 million cases of respiratory symptom days in
Metro Manila (averaging twice a year in Davao and
Cebu, and five to six times in Metro Manila and
Baguio), costs about US$170 million. This is a 70
percent increase, over a decade, when compared with
the findings of a similar study done in 1992 for Metro
Manila, which reported 33 million cases.
" Petitioners likewise cite the University of the
Philippines' studies in 1990-91 and 1994 showing that
vehicular emissions in Metro Manila have resulted to
the prevalence of chronic obstructive pulmonary
diseases (COPD); that pulmonary tuberculosis is
highest among jeepney drivers; and there is a 4.8 to
27.5 percent prevalence of respiratory symptoms
among school children and 15.8 to 40.6 percent among
child vendors. The studies also revealed that the
children in Metro Manila showed more compromised
pulmonary function than their rural counterparts.
Petitioners infer that these are mostly due to the
emissions of PUVs.
To counter the aforementioned detrimental effects of

emissions from PUVs, petitioners propose the use of CNG.
According to petitioners, CNG is a natural gas comprised
mostly of methane which although containing small
amounts of propane and butane, is colorless and odorless
and considered the cleanest fossil fuel because it produces
much less pollutants than coal and petroleum; produces up
to 90 percent less CO compared to gasoline and diesel fuel;
reduces NOx emissions by 50 percent and cuts
hydrocarbon emissions by half; emits 60 percent less PMs;
and releases virtually no sulfur dioxide. Although,
according to petitioners, the only drawback of CNG is that
it produces more methane, one of the gases blamed for
global warming.
Asserting their right to clean air, petitioners contend that

the bases for their petition for a writ of mandamus to order
the LTFRB to require PUVs to use CNG as an alternative
fuel, lie in Section 16, Article II of the 1987 Constitution,
our ruling in Oposa v. Factoran, Jr., and Section 4 of
Republic Act No. 8749 otherwise known as the "Philippine
Clean Air Act of 1999."
xxx
According to petitioners, Section 16, 21 Article II of the

1987 Constitution is the policy statement that bestows on
the people the right to breathe clean air in a healthy
environment. This policy is enunciated in Oposa. The
implementation of this policy is articulated in Rep. Act No.
8749. These, according to petitioners, are the bases for their
standing to file the instant petition. They aver that when
there is an omission by the government to safeguard a
right, in this case their right to clean air, then, the citizens
can resort to and exhaust all remedies to challenge this
omission by the government. This, they say, is embodied in
Section 4 of Rep. Act No. 8749.
Petitioners insist that since it is the LTFRB and the DOTC

that are the government agencies clothed with power to
regulate and control motor vehicles, particularly PUVs,
and with the same agencies' awareness and knowledge
that the PUVs emit dangerous levels of air pollutants, then,
the responsibility to see that these are curbed falls under
respondents' functions and a writ of mandamus should
issue against them.
xxx
Now, as to petitioners' standing. There is no dispute that

petitioners have standing to bring their case before this
Court. Even respondents do not question their standing.
This petition focuses on one fundamental legal right of
petitioners, their right to clean air. Moreover, as held
previously, a party's standing before this Court is a
procedural technicality which may, in the exercise of the
Court's discretion, be set aside in view of the importance of
the issue raised. We brush aside this issue of technicality
under the principle of the transcendental importance to the
public, especially so if these cases demand that they be
settled promptly.
Undeniably, the right to clean air not only is an issue of

paramount importance to petitioners for it concerns the air
they breathe, but it is also impressed with public interest.
The consequences of the counter-productive and retro-
gressive effects of a neglected environment due to
emissions of motor vehicles immeasurably affect the well-
being of petitioners. On these considerations, the legal
standing of the petitioners deserves recognition.
xx
In this petition the legal right which is sought to be

recognized and enforced hinges on a constitutional and a
statutory policy already articulated in operational terms,
e.g. in Rep. Act No. 8749, the Philippine Clean Air Act of
1999. Paragraph (a), Section 21 of the Act specifically
provides that when PUVs are concerned, the responsibility
of implementing the policy falls on respondent DOTC. It
provides as follows:
SEC 21. Pollution from Motor Vehicles. -a) The

DOTC shall implement the emission standards for
motor vehicles set pursuant to and as provided in
this Act. To further improve the emission
standards, the Department [DENR] shall review,
revise and publish the standards every two (2)
years, or as the need arises. It shall consider the
maximum limits for all major pollutants to ensure
substantial improvement in air quality for the
health, safety and welfare of the general public.
Paragraph (b) states:
b) The Department [DENR] in collaboration with

the DOTC, DTI and LGUs, shall develop an
action plan for the coiErol and management of
air pollution from motor vehicles consistent
with the Integrated Air Quality Framework...
(Emphasis supplied.)
There is no dispute that under the Clean Air Act it is the
DENR that is tasked to set the emission standards for fuel
use and the task of developing an action plan. As far as
motor vehicles are concerned, it devolves upon the DOTC
and the line agency whose mandate is to oversee that
motor vehicles prepare an action plan and implement the
emission standards for motor vehicles, namely the LTFRB.
xxx
Petitioners invoke the provisions of the Constitution and

the Clean Air Act in their prayer for issuance of a writ of
mandamus commanding the respondents to require PUVs
to use CNG as an alternative fuel. Although both are
general mandates that do not specifically enjoin the use of
any kind of fuel, particularly the use of CNG, there is an
executive order implementing a program on the use of
CNG by public vehicles. Executive Order No. 290, entitled
Implementing the Natural Gas Vehicle Program for Public
Transport (NGVPFI), took effect on February 24, 2004. The
program recognized, among others, natural gas as a clean
burning alternative fuel for vehicle which has the potential
to produce substantially lower pollutants; and the
Malampaya Gas-to-Power Project as representing the
beginning of the natural gas industry of the Philippines.
Paragraph 1.Z Section 1 of E.O. No. 290 cites as one of its
objectives, the use of CNG as a clean alternative fuel for
transport. Furthermore, one of the components of the
program is the development of CNG refueling stations and
all related facilities in strategic locations in the country to
serve the needs of CNG-powered PUVs. Section 3 of E.O.
No. 290, consistent with E.O. No. 66, series of 2002,

designated the DOE as the lead agency (a) in developing
the natural gas industry of the country with the DENR,
through the EMB and (b) in formulating emission
standards for CNG. Most significantly, par. 4.5, Section 4
tasks the DOTC, working with the DOE, to develop an
implementation plan for "a gradual shift to CNG fuel
utilization in PUVs and promote NGVs [natural gas
vehicles] in Metro Manila and Luzon through the issuance
of directives/orders providing preferential franchises in
present day major routes and exclusive franchises to NGVs
in newly opened routes..." A thorough reading of the
executive order assures us that implementation for a
cleaner environment is being addressed. To a certain
extent, the instant petition had been mooted by the
issuance of E.O. No. 290.
Regrettably, however, the plain, speedy and adequate

remedy herein sought by petitioners, i.e., a writ of
mandamus commanding the respondents to require PUVs
to use CNG, is unavailing. Mandamus is available only to
compel the doing of an act specifically enjoined by law as a
duty. Here, there is no law that mandates the respondents
LTFRB and the DOTC to order owners of motor vehicles to
use CNG. At most the LTFRB has been tasked by E.O. No.
290 in par. 4.5 (ii), Section 4 "to grant preferential and
exclusive Certificates of Public Convenience (CPC) or
franchises to operators of NGVs based on the results of the
DOTC surveys."
xxx
In the same manner that we have associated the
fundamental right to a balanced and healthful ecology
with the twin concepts of "inter-generational respon-
sibility" and "inter-generational justice" in Oposa, where
we upheld the right of future Filipinos to prevent the
destruction of the rainforests, so do we recognize, in this
petition, the right of petitioners and the future generation
to clean air. In Oposa we said that if the right to a balanced
and healthful ecology is now explicitly found in the

Constitution even if the right is "assumed to exist from the
inception of humankind.., it is because of the well-
founded fear of its framers [of the Constitution] that unless
the rights to a balanced and healthful ecology and to health
are mandated as state policies by the Constitution itself,
thereby highlighting their continuing importance and
imposing upon the state a solemn obligation to preserve
the first and protect and advance the second, the day
would not be too far when all else would be lost not only
for the present generation, but also for those to come..."
It is the firm belief of this Court that in this case, it is timely
to reaffirm the premium we have placed on the protection
of the environment in the landmark case of Oposa. Yet, as
serious as the statistics are on air pollution, with the
present fuels deemed toxic as they are to the environment,
as fatal as these pollutants are to the health of the citizens,
and urgently requiring resort to drastic measures to reduce
air pollutants emitted by motor vehicles, we must admit in
particular that petitioners are unable to pinpoint the law
that imposes an indubitable legal duty on respondents that
will justify a grant of the writ of mandamus compelling the
use of CNG for public utility vehicles. It appears to us that
more properly, the legislature should provide first the
specific statutory remedy to the complex environmental
problems bared by herein petitioners before any judicial
recourse by mandamus is taken.
WHEREFORE, the petition for the issuance of a writ of
mandamus is DISMISSED for lack of merit.
In MMDA v. Jancom, the Supreme Court upheld the Court
of Appeals ruling that the Clean Air Act only prohibits
"burning processes which emit poisonous and toxic
fumes." This effectively restricted the meaning of
'incineration," and the scope of the ban on incineration. In
my view the Court was mistaken in doing so, thereby
opening a big loophole in the Clean Air Act.
NATIONAL LAWS MD POUCiES 513
MMDA vs. JANCOM Environmental Corporation

G.R. No. 14746, January 30,2002
MELO, Jponente:
Before the Court is a petition for review on certiorari under
Rule 45 of the Rules of Civil Procedure filed by petitioner
Metropolitan Manila Development Authority (MMDA),
seeldng to reverse and set aside the November 13, 2000
decision of the Court of Appeals declaring valid and
perfected the waste management contract entered into by
the Republic of the Philippines, represented by the
Secretary of National Resources and the Executive
Committee to oversee the build-operate-transfer imple-
mentation of solid waste management projects, and
JANCOM Environmental Corporation.
xxx
In 1994, then President Fidel V. Ramos issued Presidential

Memorandum Order No. 202 creating the Executive
Committee (EXECOM) to oversee the BOT implementation
of solid waste management projects, headed by the
Chairman of the MMDA and the Cabinet Officer for
Regional Development-National Capital Region (CORD-
NCR). The EXECOM was to oversee and develop waste-to-
energy projects for the waste disposal sites in San Mateo,
Rizal and Carmona, Cavite under the build-operate-
transfer (BOT) scheme. The terms of reference for the
waste-to-energy projects provided that its proponents
should have the capability to establish municipal solid
waste thermal plants using incineration technology. This
type of technology was selected because of its alleged
advantages of greatly reduced waste volume, prolongation
of the service life of the disposal site, and generation of
electricity.
During the second bid conference, the bid proposals of

First Philippines for the Carmona site and JANCOM for
the San Mateo site were found to be complete and
responsive. Consequently, on February 12,1997, JANCOM
and First Philippines were declared the winning bidders,
respectively, for the San Mateo and the Carmona projects.
xxx
Moreover, if after a perfected and binding contract has
been executed between the parties, it occurs to one of them
to allege some defect therein as reason for annulling it, the
alleged defect must be conclusively proven, since the
validity and the fulfillment of contracts cannot be left to
the will of one of the contracting parties. In the case at bar,
the reasons cited by MMDA for not pushing through with
the subject contract were: 1) the passage of the Clean Air
Act, which allegedly bans incineration; 2) the closure of the
San Mateo landfill site; and 3) the costly tipping fee. These
reasons are bereft of merit.
Once again, we make reference to the insightful
declarations of the Court of Appeals:
Sec. 20 of the Clean Air Act pertinently reads:
SECTION 20. Ban on Incineration.-Inci-
neration, hereby defined as the burning of
municipal, bio-chemical and hazardous
wastes, which process emits poisonous
and toxic fumes, is hereby prohibited ..."
Section 20 does not absolutely prohibit
incineration as a mode of waste disposal;
rather only those burning processes which
emit poisonous and toxic fumes are
banned.
xxx
WHEREFORE, premises considered, the petition is hereby

DISMISSED for lack of merit and the decision of the Court
of Appeals in CA-G.R. SP No. 59021 dated November 13,
2001 AFFIRMED. No costs.
Invoking the right of citizens to breathe clean air as
recognized by Republic Act No. 8749 otherwise known as
the Clean Air Act, the Philippine Medical Association has
declared its intention to bring a P1-Billion class suit against
the Secretary of the Department of Transportation and
Communications for the Department's failure to abate the
numerous smoke-belching vehicles from plying the streets
of Metro Manila, which have greatly contributed to the
deteriorating air quality in the city which pose a serious
danger to the lives of the residents. 161
While air quality is still a problem in Metro Manila, other

cities in the country as enumerated below have already
pushed forward to make this issue a thing of the past:
1. Puerto Princesa, Palawan - With the objective of

decreasing the city's hydrocarbon and carbon
monoxide emissions, the local government imple-
mented the "50-50 scheme" which reduced by half
the number of public utility tricycles operating in
the city. 62
2. San Fernando City, La Union - The local govern-
ment implemented an upgrading program for
public utility tricycles previously running on 2-
stroke cycle engines to 4-stroke cycle engines by
offering incentive schemes to the affected sector,
e.g. interest free loans, to reduce air poUution.'6
161 Sheila Crisostomo, PMA eyes P1-billion class suit vs DOT. chief in Philippine
Star (April 11, 2012), http://www2.philstar.com/naton/topstories/794110/
pma-eyes-pl-billion-dass-suit-vs-dotc-chief.
162 Clean Air Quality Tool Kit for Local Governments: Case Studies, 135-138
(USAID Project) http://deanairinitiative.org/porta/node/4716.
163 Id, atl40.
3. Marikina City, Metro Manila - The local govern-

ment is promoting biking as an alternative mode of
transportation within the city by allotting bike
lanes in its streets and highways to reduce
emissions from vehicles.1 "
10.5 The Clean WaterAct
According to the Environmental Management Bureau (EMB),
as early as 1996 51% of our country's rivers still met the
standards for their most beneficial use, leaving the rest
polluted from domestic, industrial and agricultural sources.
Studies say that domestic wastewater is the principal cause
of organic pollution (at 48%) in our water bodies. According
to a World Bank report, Metro Manila is second to the lowest
in sewer connections among major cities in Asia.
Furthermore, 31% of all illnesses in the country are attributed
to polluted waters. 165
On the basis of these facts, the Philippine Clean Water Act of
2004, or Republic Act no. 9275, aims to protect the country's
water bodies from pollution from land-based sources. It
provides for a comprehensive and integrated strategy to
prevent and minimize pollution through a multi-sectoral and
participatory approach involving all stakeholders. In Section
2, it specifically states that RA 9275 aims to pursue a policy of
economic growth in a manner consistent with the protection,
preservation and revival of the quality of our fresh, brackish
and marine water.
President Gloria Macapagal-Arroyo approved the Clean
Water Act on March 2, 2004, and it took effect on May 6,
2004. The Implementing Rules and Regulations (IRR) of the
at 143.
I" Id.,
'"Environmental Management Bureau (2012), httpJ//emb.gov.ph/eeid/cwa-
miglish.htm.
NAIONAL LAWS AND POUClES I 517
Act were approved by the Secretary of the DENR on May 16,

2005 and took effect on June 10, 2005.
The Act applies to water quality management in all water
bodies. It primarily applies to the abatement and control of
pollution from land-based sources, although the water
quality standards and regulations and the civil liability and
penal provisions under the Act shall be enforced irrespective
of sources of pollution.166
Management of Water Quality

The Department of Environment and Natural Resources, in
coordination with the National Water Resources Board
(NWRB), is tasked to designate certain areas as water quality
management areas. These management areas should have
similar hydrological, hydrogeological, meteorological or
geographic conditions. A governing board, composed of
mayors and governors of member LGUs, as well as
representatives of relevant national government agencies,
NGOs, water utility sector and the business sector, is to
govern the management areas.
The governing boards are tasked with formulating strategies
to coordinate policies necessary for the Act's effective
implementation. Each management area is required to form a
multi-sectoral group to establish and effect water quality
surveillance and monitoring network. The group is required
to submit its recommendation and report to the chairman of
the governing board.167
166Rep. Act 9275, §3 (Ph.).

167 Rep. Act 9275, §5 (Phil.).
Obligations Created
DENR
The primary duty of the DENR is to act as the overall lead
agency to implement and enforce the Clean Water Act.1 68
This included the preparation of a National Water Quality
Status Report, an Integrated Water Quality Management
Framework, and a 10-year Water Quality Management Area
Action Plan. The Action Plan is to be reviewed by the water
quality management area governing board every five years,
or as the need arises.169 Aside from designating water
management areas pursuant to Section 5, the DENR is also
tasked to designate water bodies where specific pollutants
from either natural or man-made source have already
exceeded water quality guidelines as non-attainment areas
for the exceeded pollutants.170 It tasked with preparing and
implementing a program that will not allow new sources of
exceeded water pollutant in non-attainment areas without a
corresponding reduction in discharges from existing sources.
Within two years from the effectivity of the Act, the DENR
was to revise and publish a list of categories of industry
sector for which effluent standards were provided for each
significant wastewater parameter per industry sector,""a and
to implement a wastewater charge system in all management
areas."' 2 The Department was likewise given the authority to
grant discharge permits to owners or operators of facilities
that discharge regulated effluents."' 3
168 Rep. Act 9275, §19 (Phil).

169 Rep. Act 9275, §19(b) (Phil.).
170 Rep. Act 9275, §6 (Phil.).
m Rep. Act 9275, §12 (Phil.).
In Rep. Act 9275, §13 (PhiL).
1n Rep. Act 9275, §14 (PhiL).
The DENR, in coordination with the DOST and other

concerned agencies and academic institutions, is required by
the Act to establish a national research and development
program for the prevention and control of water pollution. 174
DPWH
Under the Clean Water Act, the DPWH is tasked to prepare a
national program on sewerage and septage management,
which shall include a priority listing of sewerage, septage
and combined sewerage-septage projects for LGUs based on
population density and growth, degradation of water
resources, topography, geology, vegetation, programs/
projects for the rehabilitation of existing facilities. 175
LGUs
The Act requires LGUs to appropriate the necessary land,
and road right of way for the construction of the sewage
and/or septage treatment facilities. They may also raise funds
to subsidize the necessary expenses for the operation and
maintenance of sewerage treatment or septage facility
servicing their area of jurisdiction. 76
DOH
The DOH shall formulate guidelines and standards for the
collection, treatment and disposal of sewage including
guidelines for the establishment and operation of centralized
sewage system. 17 It shall also be responsible for the
promulgation, revision and enforcement of drinking water
quality standards. 1 8
174 Rep. Act 9275, §24 (PhiL).

175 Rep. Act 9275, §7 (Phil.).
1 Rep. Act 9275, §7 (Phil.).
Rep. Act 9275, §8 (Phil.).
177
= Rep. Act 9275, §22(d) (Phil.).
Philippine Coast Guard
The Philippine Coast Guard, in coordination with the DA
and the DENR is responsible for enforcing water quality
standards in marine waters, specifically from offshore
sources. 179
MWSS, LWUA and other urbanwater utilities
They are responsible for the provision of sewerage and
sanitation facilities and the efficient and safe collection,
treatment and disposal of sewage within their area of
jurisdiction.18 0
DA
The DA, under the Act, was to develop guidelines for re-use
of wastewater for irrigation and other agricultural purposes
and for the prevention, control and abatement of pollution
from agricultural and aquaculture activities.181
The BFAR, under the DA, was determined to be primarily
responsible for the prevention and control of water pollution
for the development, management and conservation of the
fisheries and aquatic resources. 182
DOST
The DOST was to prepare a program for evaluation,

verification, development and public dissemination of
pollution prevention and cleaner production technologies.18 3
i"Rep. Act 9275, §22(a) (Phil.).

RN
Rep. Act 9275, §22(b) (Phil.).
8 Rep. Act 9275, §22(c) (Phi.).
iN Rep. Act 9275, §22(c) (Phil.).
10 Rep. Act 9275, §22(e) (PhiL).
NATIONAL LAWS AND PoucEs 1 521
DepEd, CHED, DILG and PIA

They are tasked to assist and coordinate with the DENR in
the preparation and implementation of a comprehensive and
continuing public education and information program
pursuant to the objectives of the Act.184
National Water Quality Management Fund
A water quality management fund administered by the
DENR was established by the Clean Water Act to be used for
the purposes specified in Section 9. Donations, endowments
and grants in the form of contributions to the national
government under the Act are exempt from donor's taxes
and all other taxes, charges or fees imposed by the
government, and are to be deducted from the gross income
of the donor for income tax purposes. 8 5
Area Water Ouality Management Fund
The area water quality management fund was established

under the Clean Water Act for the maintenance and upkeep
of the water bodies in a water quality management area. It is
to be used for (1) the grant of rewards and incentives to
entities whose effluent discharges are better than the water
quality criteria of the target classification of the receiving
body of water, (2) loans for acquisitions and repairs of
facilities to reduce quantity and improve quality of
wastewater discharges, and (3) regular maintenance of the
water bodies within the management area.S6
1N Rep. Act 9275, §22(f) (Phil.).

18 Rep. Act 9275, §9 (Phil.).
16 Rep. Act 9275, §10 (PhiL).
Establishment of Wastewater Charge System
The Clean Water Act features a wastewater charge system in

all management areas. The system is established on the basis
of payment to the government for discharging wastewater
into the water bodies.l' The fee shall be based on the net
waste load using the following formula, which is to be
applied to all industrial and commercial wastewaters: 188
WDF=L.xR
Were R = rate per kilogram (Php/kg) initiallyfixed at P5.00
per kilogramfor prioritypollutant parameter
Ln = net waste load (kg/year)
Permits are required from owners and operators that
discharge regulated effluents. The discharge permit is
therefore the legal authorization by the DENR to discharge
wastewater, 189 and shall specify the quantity and quality of
effluent that the said facilities are allowed to discharge into a
particular water body, along with the compliance schedule
and monitoring requirement.
Clean-Up Operations
Any person who pollutes, or caused the pollution of, water
bodies in excess of the applicable and prevailing standards
shall be responsible to contain, remove and clean up any
pollution incident at his own expense, to the extent that the
same water bodies have been rendered unfit for utilization
and beneficial use. However, in the event of a polluter's
failure to immediately undertake necessary emergency clean
Iv Rep. Act 9275, §13 (Phil).

us DAO 2005-10, §13.1 (Phil.).
B9 Rep. Act 9275, §14 (Phil.).
up operations, the DENR shall conduct containment,

removal and clean up operations. The expenses incurred by
the DENR, however, shall be reimbursed by the person/s
found to have caused such pollution, after liability has been
properly determined in accordance with the Clean Water
Act.190
Incentives and Rewards

Rewards shall be given to individuals, private organizations
and entities that have undertaken outstanding and
innovative projects, technologies, processes and techniques
or activities in water quality management. These rewards
shall be taken from the Water Quality Management Fund. 91
Incentives are given to encourage LGUs, water districts,
enterprises, or private entities, and individuals to develop or
undertake an effective water quality management or actively
participate in any program geared towards the promotion
thereof. Incentives may be non-fiscal, such as the inclusion in
the Investments Priority Plan or fiscal such as tax and duty
exemption on imported capital equipment, tax credit on
domestic capital equipment, or tax and duty exemption of
donations, legacies and gifts. Government financial
institutions such as the Development Bank of the
Philippines, Land Bank of the Philippines, Government
Service Insurance System and such other government
institutions accord high priority to extend financial services
to LGUs, WDs, enterprises or private entities engaged in
sewage collection and treatment facilities. Lastly, cities and
municipalities that establish or operate sewerage facilities
may be entitled to receive grants for the purpose of
developing technical capabilities. 192
190Rep. Act 9275, §16 (Phil).

191Rep. Act 9275, §25 (Phil.).
192 Rep. Act 9275, §26 (Phil.).
Penal Provisions
Actions prohibited by the Clean Water Act are provided in

Section 27 to the said law. Some of these include
discharging, depositing or causing to be deposited material
of any kind directly or indirectly into water bodies, which
could cause water pollution. Section 28 provides for fines,
damages and penalties to any person who commits any of
the prohibited acts. The Secretary of the DENR, upon
recommendation of the PAB, shall impose fines not less than
P10,000 or more than P200,000 for every day of violation.
Failure to undertake clean up operations, willfully or
through, gross negligence, shall be punished by
imprisonment of not less than two years and not more than
four years, and a fine not less than P50,000 and not more
than P100,000 per day for each day of violation. Such failure
or refusal that results in serious injury or loss of life and/or
irreversible water contamination of surface, ground, coastal
and marine water shall be punished with imprisonment of
not less than six years and one day and not more than twelve
years, and a fine of P500,000 per day for each day during
which the omission and/or contamination continues. In case
of gross violations of the Act, the PAB shall issue a resolution
recommending that the proper government agencies file
criminal charges against the violators.193
Local government officials shall be subject to administrative
sanctions in case of failure to comply with their action plan
in accordance with the relevant provisions of the Local
Government Code.'9
' Rep. Act 9275, §28 (Phil).

Pep. Act 9275, §29 (PhiL).
R
For years now, the problems posed by hazardous substances
and wastes have been one of the priority concerns of the
Philippine government. This is likely due to the quickly
growing number of transnational companies, as well as local
firms, that generate waste considered hazardous to health
and the environment. The Philippines, like any Third World
country, is not properly equipped in terms of machinery and
technical expertise to deal with these substances, although
steps are being done to define the regulatory and
enforcement responsibilities of various government agencies.
The agency that probably has the most important role in the
management and control of these substances and wastes is
the Department of Environment and Natural Resources
(DENR).
Toxic waste is waste material that can cause death or injury
to living creatures. Often used interchangeably with the term
"hazardous waste," it spreads very easily and can
contaminate land, air, and water. It encompasses any form
of discarded material that can pose a long-term risk to health
or the environment. As with most environmental problems,
toxic waste began to be a significant issue during the
industrial revolution. It is usually the product of industry or
commerce, but also comes from residential use (e.g. cleaning
products, cosmetics, lawn care products), agriculture (e.g.
chemical fertilizers, pesticides), the military (nuclear
weapons testing, chemical warfare), medical facilities (e.g.
pharmaceuticals), radioactive sources, and light industry,
such as dry cleaning establishments. Toxic waste comes in
many forms, such as liquid, solid, or sludge, and it contains
chemicals, heavy metals, radioisotopes, dangerous
pathogens, or other toxins.
The Philippines' Situation
The pressure brought about by rapid population growth,

combined with inadequate environmental sanitation facilities
have resulted in the generation of severe negative impacts in
the Philippines and other countries in Southeast Asia.
Furthermore, excessive exploitation of natural resources at
present poses a great threat for future generations. Disposal
of waste into the environment by the escalating number of
industries has caused the rapid increase in pollution not only
in the Philippines, but in other parts of the globe as well.
Disposal of various non-biodegradable chemical and
hazardous wastes is making most of the water resources in
the country unsuitable for use, creating the need for
expensive advanced treatment, and most of the land unfit for
cultivation and crop production. The end results of these
activities are environmental degradation and health hazards.
Industrialized countries are most probably responsible for
this rapid depletion of resources and environmental
degradation by virtue of waste exportation, which is
explicitly prohibited by certain local legislations and
international agreements.
In a study conducted by Greenpeace of Southeast Asian

Countries in 1994195 one of the most significant hazardous
waste problems in the Philippines is the small-scale nature of
the majority of the industrial facilities, and inadequate space
available for on-site storage of hazardous wastes. Most of
these industries are located in municipal areas, so they
deposit their wastes in streets and MSW containers, and
discharge wastewater into drains and sewer pipes. There is
always a dangerous threat to the aquatic life by the
wastewater discharged into rivers, as well as, the pollution of
land, if irrigated with such water. Moreover, seepage of
195 Greenpeace (1994).

leachate and percolation of surface water into ground can

cause groundwater pollution.
According to the website of the Basel Action Network
(BAN), most countries in Southeast Asia are faced with
financial problems thereby impeding the effective
implementation of pollution control systems, especially in
the case of small-scale industries in Hong Kong, Malaysia,
Papua New Guinea, and the Philippines, which prefer to
shut down their business operations rather than installing
individual hazardous waste treatment facilities. 196 Even
though the treatment equipment is installed by large-scale
multinational industries, they are not operated properly as
reported by some government agencies of Thailand and the
Philippines. 197 Most of these industries are always having
problems with the facilities like finance, technical, and
infrastructure to deal with these waste problems. Total
treatment or disposal is not implemented in most of the
provinces, cities and municipalities in the country. Although
a couple of incineration plants are installed for hazardous
waste treatment, they are not sufficient, and most of the said
hazardous wastes are disposed into unsecured landfill. In the
Philippines, hazardous wastes are collected from industries
located in Manila and dumped in neighboring rural areas
such as Rizal and Batangas.198
The adverse effects of improper management and control of

hazardous wastes is something that the Philippine
Government is greatly concerned about. Various types and
quantities of wastes are produced in the country, and the
specific pieces of information regarding which are not
196 Ban.org, http://www.ban.org/philippines.

197 Id.
198A Survey of Environmental Markets in 16 Asia-Pacific Countries and Territories,
SGS-Environmental Information Unit, Bangkok, Thailand (1996).
properly documented. Domestic industrial activities and

transportation of hazardous wastes from developed
countries are two of the main sources of the profound
difficulty in handling and controlling hazardous substances
and wastes that are dangerous to human health and the
environment.19 Furthermore, the absence of strict
enforcement, experienced manpower, and lack of public
awareness are also relevant issues which the government
needs to address.
In addition to the continuous increase in the number of
industries in the country is the growing burden for the
government to control and manage it. Existence of small-
scale industries, scattered profile of industrial development,
and unavailability of actual data on the volume and
characteristics of hazardous wastes from industries are
significant areas of concern as well. Nevertheless, effective
information dissemination in order to properly instill
awareness among the public is the most important factor that
should be taken into consideration by the Philippine
Government, to be able to correctly identify the genuine
problems brought about by the generation of hazardous
substances and wastes and eventually create feasible
solutions to such problems.
Moreover, in 1996, Greenpeace investigations showed that
the Philippines was becoming a leading destination of
hazardous wastes coming mostly from industrialized
countries. In particular, used lead acid batteries (ULABs),
considered as hazardous waste by the international
community, were being imported into the country using the
guise of recycling.
199
EarthSummit, United Nations, http://www.urLorg/esa/earthsummit
According to Greenpeace, hazardous waste recycling in

developing countries can be characterized as either sham or
dirty recycling. Sham recycling takes place when exports
claimed to be for recycling are actually merely dumped in
the receiving country after minimum or zero processing. This
is especially difficult in third world countries like the
Philippines. Even the so-called state-of-the-art hazardous
waste recycling operations being supported and funded by
the Philippine government are some of the worst polluters
Greenpeace has investigated.2X0 These facilities often pollute
far more than a disposal facility would. Not only do these
operations pollute the environment with toxic emissions,
they often create residual hazardous wastes, which are more
toxic than the original wastes.
Despite a supposed national ban on the entry of toxic and
hazardous wastes into the country, and despite being an
active party to the Basel Convention which aims to halt the
transboundary movement of hazardous and toxic wastes for
dumping and recycling purposes, the Philippines in the mid-
1990s became one of the leading destinations of scrap lead
acid batteries from industrialized nations like Australia,
Canada, United Kingdom, Germany and the United States. 2m
A Breath of Fresh Air

Of all the natural resources available to human beings, air is
arguably the most free and accessible, the most public and
common of goods. While lumber, ores and oil must be
harvested, mined or refined; while water must be filtered and
purified before being fit for consumption; and while crops and
livestock must be grown; air is simply breathed.And, of all the
210 Greenpeace (2003).

2ft Greenpeace (1996).
natural resources on earth, air is the one we use the most -for
we must breathe every day we live.
Yet perhaps because air is so common a good, like all common

goods, it suffers from overuse and abuse. Ever since the
Industrial Revolution, air pollution has worsened everywhere,
sparing very few places. A large portion of the problem,
especially in the cities, comes from vehicular exhaust. Up to 90
percent of urban pollution can come from cars and trucks. This
problem is compounded by the gridlock of rush hour, which
leaves vehicles stuck in traffic or in slow speeds, all the while
still burning gas and releasing pollutants. This is an all-too-
common sight along EDSA or in the densest parts of the
metropolis. Finally-and this is a problem very familiar to
Manilefios -there are cars, jeepneys, and trucks with poorly-
maintained engines, or without proper catalytic converters,
belching unsightly smoke, often times right into the face of
following vehicles, or pedestrians alongside the road.
Pollution is not just caused by cars, however, and whether in

major cities or the province, industries have increasingly
become the source of pollution. Poor and insufficient
enforcement can lead to industries setting up shop in the
provinces without regard for environmental compliance,
dispensing with required air and water pollution controls in
order to drive down costs and increase profits. In the end, the
provincial poor, so often "out of sight, out of mind" from
policy-makers, have to endure the same threats to their health
that city folk face walking down EDSA. Precisely because of
their poverty and distance from sufficient health care, the rural
poor are even more vulnerable to lung diseases.
Innovative thinking is necessary to head off this threat to

Philippine health. Perhaps a happy coincidence, in Western
-astrology, the classical element of Air is identified with the
mind, logic, invention, and innovation.
Technology is a key factor in the fight against air pollution:

hybrid vehicles and electric cars to reduce dependence on
fossil fuels, and air pollution scrubbers for industrial
smokestacks that strip exhaust gases of particulate matter and

toxic chemicals. The problem with technology is that it is often
expensive-a hybrid Honda Civic, for example, costs
significantly more than a regular Civic. It is not impossible,
however, to envision some government support and incentives
to help shift the Philippines industries and transport systems
green-ward: increasing the use of more environmentally-
friendly biofuels or renewable energy sources, subsidies for
hybrid and electric vehicles, encouraging foreign companies
and even rich countries to sponsor air-friendly projects like
reforestation or renewable energy.
Specific to traffic as the largest source of air pollution, one of

the best solutions is encouraging public transportation and
carpools. Sadly, our public transport systems often are a
sources of air pollution themselves, especially smoke-belching
"colorum" buses. So far, the cleanest option in Metro Manila is
the MRT-LRT system, and it is sadly overtaxed. Makati has
experimented with electrical "eJeepneys," and this should be
encouraged elsewhere in the metropolis. In this regard, I urge
the Metropolitan Manila Development Authority to fast-track
the implementation of a Bus Rapid Transit (BRT) system,
starting perhaps with Commonwealth Avenue. BRT is an
innovative, flexible, high capacity, more cost-effective public
transportation solution that utilizes buses or specialized
vehicles on roadways or dedicated lanes to quickly and
efficiently transport commuters to their destinations.
The State and our society must integrate sustainable

development ideas into urban planning, as well as economic
development. We can make it so that land developers, by law,
must provide areas for public-use "urban forests" or parks
whenever they undertake a large-scale project like a mall or a
high-rise (as it stands, one usually only sees this in
subdivision-based land development in the suburbs, or high-
profile apartment construction, both of which almost are the
exclusive province of the wealthy). City planning and renewal
must also be executed, from the start, with efficient road
networks and public transport systems to reduce gridlock and
dependence on private vehicles.
The government, especially at the local level, should regulate

which kinds of industries can operate in the country. The need
for economic development and job creation cannot be an
excuse to be lax on environmental standards. Violators must
be shuttered and penalized for endangering public health.
Beefing up the enforcement arms of the Department of
Environment and Natural Resources (DENR), as well as taking
advantage of new, environmentally-friendly Supreme Court
rules such as the Writ of Kalikasan, are the best tools the state
has to defend the right to clean air. In exchange, we must seek
out and entice those businesses that are willing to implement
pollution control measures into their processes, and even help
or sponsor the country's efforts to restore the environment. We
should also look to substitute crude, polluting industries with
lucrative agricultural or ecotourism jobs for the rural poor,
providing them employment options that are better
economically and health-wise.
A combination of incentives and innovative policies can go a
long way towards clearing up our air, and ensuring our
children can breathe freely in the future. Above everything
else however, consistent, uncompromising and effective
enforcement is the most essential ingredient in the fight
against air pollution. Enforcing once for all The Clean Air Act,
a law passed more than ten years ago - now that's a breath of
fresh air.
Takenfrom:
24 May 2011, Manila Standard Today
Poison in Bulacan
Air and water pollution in the country is a worsening problem.

Manila, for example, has been reported as the 4th most polluted
city in the world. If you think, however, that pollution is a
concern exclusive to Metro Manilans, think again. We are
NATIONAL LAWS AND POUClEs I 533
becoming more aware of the ill effects of pollution that are

beginning to be felt even in the provinces. A particular tire
pyrolysis facility somewhere in Bulacan is a case in point.
In 2009, a waste oil processing plant was granted an

Environmental Compliance Certificate (ECC) from the
Department of Environment and Natural Resources (DENR)
but soon after, the ECC was amended so the facility could
conduct tire pyrolysis or the extraction of oil using scrap/waste
rubber tires as raw materials. Tire pyrolysis, when done
properly by investing in the right equipment and proper
diligence, is arguably a safe technology, despite the toxic
products produced. However, in this case, the technology was
clearly inadequate and crude. If one visited the premises of the
facility, as I personally did, it would be obvious that it was
being operated without regard for the safety for its workers
and surrounding residents. The building was decrepit, the
fence improperly built, and carbonaceous waste from
operations could be seen everywhere. Recently, patched-up
improvements were done to give the semblance of good
housekeeping. Even after upgrades, the facility remains
unreliable. It was appalling, how the government could have
even allowed the operation of what was clearly an
inadequately funded and backyard - probably fly-by-night -
operation, which had such serious environmental and health
impacts.
The hazardous operations resulted in excessive discharge of

wastewater and airborne pollutants that polluted its
surroundings and caused health problems to nearby residents,
ranging from allergic reactions and pneumonia to other
respiratory ailments. Neurological symptoms such as
headaches, dizziness and nausea have been reported as well.
Long-term effects could include cancer and similar death-
threatening illnesses. These serious health effects are
corroborated by an independent report from the Blacksmith
Institute which states that "[r]esidents living near xxx
commonly experience difficulty in breathing every time the
establishment is operating. This is because of the black smoke
coming from the company's smoke stack. According to one of
the residents, they usually stay inside their house because they
can't stand the smoke coming from the burning of tires.
Inhaling the smoke also causes [headaches] and chest pain due
to coughing."
After unfavorable media exposure and after complaints from

affected residents, the Pollution Adjudication Board (PAB)
issued, in December 2009, a Cease and Desist Order (CDO)
against the company for failure to pass the DENR Effluent
Standards in terms of oil and grease. The company, however,
intentionally defied the Order and continued to operate. After
several attempts, the DENR successfully padlocked the facility
on February 8, 2010. Then-acting DENR Secretary Eleazar
Quinto himself led the operations to close the plant and was quoted as
saying "[t]his [closure] is a (sic) work done by a community
against a firm that has no regard for the community and the
environment. We made several attempts to enter this firm but
we failed. This firm operates in a guerrilla-style manner, a hit-
and-run type."
Unfortunately, a Temporary Lift Order (TLO) for 15 days was

granted to the facility on May 2010. A TLO is normally allowed
so that a previously closed facility can be tested on whether its
operations have begun to comply with the law. In this case,
however, given the serious health impacts of the pollution, the
Pollution Adjudication Board should never have issued a TLO.
Another Acting DENR Secretary, Horace Ramos, had to order
the Regional Office (Region 3) of the ,Environmental
Management Bureau (EMB) to again close down the facility.
When DENR Secretary Ramon Paje assumed office, he too
supported the affected residents and the facility was to remain
closed. In fact, in late 2010, the DENR cancelled the ECC it
previously granted and, during the Christmas season, for the
first time in many months, the affected residents were able to
breathe good and clean air.
Unfortunately, a happy ending is not yet certain, as the tire

pyrolysis facility has reapplied for an ECC. To my surprise and
dismay, because it is illegal (as it could circumvent the
incineration ban in the Clean Air Act) and against all common
sense, there is a possibility that the concerned EMB Regional

Office might issue such an ECC. This is so in spite of all the
documentation that affected residents have provided the
authorities on the environmental and health impacts of the
facility. These impacts will not be prevented even after recent
upgrades and in spite of the environmental record of the
facility, as well as its continued cavalier approach to the
pollution it causes (e.g., the facility operated for so long
without a pollution control officer and its present PCO is not
even an engineer and instead is an "expert" in government
relations.)
Tire pyrolysis facilities similar to the one in Bulacan should not

be allowed. Such similar facilities in that province and
elsewhere in the Philippines should be closed down. Their
technology does not stand up to standard technical
requirements of environmental and health safety. The records
of these facilities in implementing mitigation measures are
usually very bad. The legal standard the EMB/DENR should
use is the Precautionary Principle, a rule of evidence that the
Supreme Court applies to environmental cases. Where there is
serious health and environmental impacts, even when there is
scientific uncertainty, the possibility alone of serious harm
happening is enough reason to close down these facilities.
Precaution is also sufficient reason as to why the DENR cannot
allow this particular facility that emits poison in Bulacan to
reopen.
Taken from:
1 February 2011, Manila Standard Today
CHAMR ELEVEN
Climate Change and Disaster Risk Reduction

and Management
Recently, tragedy has struck many places as super-typhoons

ravaged the provinces. PAG-ASA traditionally measures
typhoon intensity by the strength of the winds, however,
recent typhoons that caused extreme damages were not only
due to strong winds but more of intense rainfall over a short
period. The steep slopes in many areas collapsed under
heavy rains, causing massive landslides that destroyed farms
and homes. The rivers overflowed and the torrents flooded
the towns in the lowlands with devastating results. Debris,
including cut logs, was swept down the river into the sea.
The townspeople in the lowlands blamed the upland
dwellers for illegal logging and deforestation that resulted in
the flood and loss of lives and property.
Climate change is a global phenomenon. While the
Philippines engages in activities that affect the climate,
regulating our actions alone is not enough. It takes global
action to make an impact. In Volume Two we look at the
United Nations Framework Convention on Climate Change
(UNFCCC) as a global action to address the issue. On the
other hand, preparing for and responding to the impacts of
climate change is a domestic challenge.
Since the solution to the environmental problem requires
concerted global action, the topic on climate change is
discussed in more detail in Volume Two. The Philippines
has crafted forward-looking and comprehensive laws to
address climate change and its impacts.
536
Climate Change Act
Republic Act 9729 (2009)
SEC. 2. Declarationof Policy.-It is the policy of the State to

afford full protection and the advancement of the right of
the people to a healthful ecology in accord with the rhythm
and harmony of nature. In this light, the State has adopted
the Philippine Agenda 21 framework which espouses
sustainable development, to fulfill human needs while
maintaining the quality of the natural environment for
current and future generations.
Towards this end, the State adopts the principle of

protecting the climate system for the benefit of humankind,
on the basis of climate justice or common but differentiated
responsibilities and the Precautionary Principle to guide
decision-making in climate risk management. As a party to
the United Nations Framework Convention on Climate
Change, the State adopts the ultimate objective of the
Convention which is the stabilization of greenhouse gas
concentrations in the atmosphere at a level that would
prevent dangerous anthropogenic interference with the
climate system which should be achieved within a time
frame sufficient to allow ecosystems to adapt naturally to
climate change, to ensure that food production is not
threatened and to enable economic development to
proceed in a sustainable manner. As a party to the Hyogo
Framework for Action, the State likewise adopts the
strategic goals in order to build national and local
resilience to climate change-related disasters.
Recognizing the vulnerability of the Philippine archipelago

and its local communities, particularly the poor, women,
and children, to potential dangerous consequences of
climate change such as rising seas, changing landscapes,
increasing frequency and/or severity of droughts, fires,
floods and storms, climate-related illnesses and diseases,
damage to ecosystems, biodiversity loss that affect the
country's environment, culture, and economy, the State
shall cooperate with the global community in the
resolution of climate change issues, including disaster risk

reduction. It shall be the policy of the State to enjoin the
participation of national and local governments, business-
es, nongovernment organizations, local communities and
the public to prevent and reduce the adverse impacts of
climate change and, at the same time, maximize the
benefits of climate change. It shall also be the policy of the
State to incorporate a gender-sensitive, pro-children and
pro-poor perspective in all climate change and renewable
energy efforts, plans and programs. In view thereof, the
State shall strengthen, integrate, consolidate and
institutionalize government initiatives to achieve coor-
dination in the implementation of plans and programs to
address climate change in the context of sustainable
development.
Further recognizing that climate change and disaster risk

reduction are closely interrelated and effective disaster risk
reduction will enhance climate change adaptive capacity,
the State shall integrate disaster risk reduction into climate
change programs and initiatives.
Cognizant of the need to ensure that national and

subnational government policies, plans, programs and
projects are founded upon sound environmental consi-
derations and the principle of sustainable development, it
is hereby declared the policy of the State to systematically
integrate the concept of climate change in various phases
of policy formulation, development plans, poverty
reduction strategies and other development tools and
techniques by all agencies and instrumentalities of the
government.
Philippine Disaster Risk Reduction and Management Act

Sec. 2. Declaration of Policy. -It shall be the policy of the

State to:
(a) Uphold the people's constitutional rights to

life and property by addressing the root causes
of vulnerabilities to disasters, strengthening
the country's institutional capacity for disaster
risk reduction and management and building
the resilience of local communities to disasters
including climate change impacts;
(b) Adhere to and adopt the universal norms,
principles, and standards of humanitarian
assistance and the global effort on risk re-
duction as concrete expression of the country's
commitment to overcome human sufferings
due to recurring disasters;
(c) Incorporate internationally accepted principles
of disaster risk management in the creation
and implementation of national, regional and
local sustainable development and poverty
reduction strategies, policies, plans and bud-
gets;
(d) Adopt a disaster risk reduction and manage-
ment approach that is holistic, comprehensive,
integrated, and proactive in lessening the
socio-economic and environmental impacts of
disasters including climate change, and pro-
motes the involvement and participation of all
sectors and all stakeholders concerned, at all
levels, especially the local community;
(e) Develop, promote, and implement a compre-
hensive National Disaster Risk Reduction and
Management Plan (NDRRMP) that aims to
strengthen the capacity of the National
Government and the local government units
(LGUs), together with partner stakeholders, to
build the disaster resilience of communities,
and to institutionalize arrangements and
measures for reducing disaster risks, including
projected climate risks, and enhancing disaster
preparedness and response capabilities at all
levels;
(f) Adopt and implement a coherent, compre-

hensive, integrated, efficient and responsive
disaster risk reduction program incorporated
in the development plan at various levels of
government adhering to the principles of good
governance such as transparency and
accountability within the context of poverty
alleviation and environmental protection;
(g) Mainstream disaster risk reduction and climate
change in development processes such as
policy formulation, socio-economic develop-
ment planning, budgeting, and governance,
particularly in the areas of environment, agri-
culture, water, energy, health, education,
poverty reduction, land-use and urban plan-
ning, and public infrastructure and housing,
among others;
(h) Institutionalize the policies, structures, coor-
dination mechanisms and programs with con-
tinuing budget appropriation on disaster risk
reduction from national down to local levels
towards building a disaster-resilient nation
and communities; xxx
xxx
Sec. 16. Declaration of State of Calamity.-The National
Council shall recommend to the President of the
Philippines the declaration of a cluster of barangays, muni-
cipalities, cities, provinces, and regions under a state of
calamity, and the lifting thereof, based on the criteria set by
the National Council. The President's declaration may
warrant international humanitarian assistance as deemed
necessary.
The declaration and lifting of the state of calamity may also
be issued by the local sanggunian, upon the recommend-
ation of the LDRRMC, based on the results of the damage
assessment and needs analysis.
SEC. 17. Remedial Measures.-The declaration of a state of
calamity shall make mandatory the immediate under-
taking of the following remedial measures by the member-
agencies concerned as defined in this Act:
(a) Imposition of price ceiling on basic necessities

and prime commodities by the President upon
the recommendation of the implementing
agency as provided for under Republic Act
No. 7581, otherwise known as the Price Act, or
the National Price Coordinating Council;
(b) Monitoring, prevention and control by the
Local Price Coordination Council of over-
pricing/profiteering and hoarding of prime
commodities, medicines and petroleum pro-
ducts;
(c) Programming/reprogramming of funds for the
repair and safety upgrading of public infra-
structures and facilities; and
(d) Granting of no-interest loans by government
financing or lending institutions to the most
affected section of the population through
their cooperatives or people's organizations.
SEC. 18. Mechanism for International Humanitarian

Assistance.-
(a) The importation and donation of food,

clothing, medicine and equipment for relief
and recovery and other disaster management
and recovery-related supplies is hereby
authorized in accordance with Sec. 105 of the
Tariff and Customs Code of the Philippines, as
amended, and the prevailing provisions of the
General Appropriations Act covering national
internal revenue taxes and import duties of
national and local government agencies; and
(b) Importations and donation under this Section
shall be considered as importation by and/or
donation to the NDRRMC, subject to the

approval of the Office of the President.
SEC. 19. Prohibited Acts. -Any person, group or corpo-

ration who commits any of the following prohibited acts
shall be held liable and be subjected to the penalties as
prescribed in Section 20 of this Act:
(a) Dereliction of duties, which lead to destruc-

tion, loss of lives, critical damage of facilities
and misuse of funds;
(b) Preventing the entry and distribution of relief
goods in disaster-stricken areas, including
appropriate technology, tools, equipment,
accessories, disaster teams/experts;
(c) Buying, for consumption or resale, from
disaster relief agencies any relief goods,
equipment or other aid commodities which are
intended for distribution to disaster affected
communities;
(d) Buying, for consumption or resale, from the
recipient disaster affected persons any relief
goods, equipment or other aid commodities
received by them;
(e) Selling of relief goods, equipment or other aid
commodities which are intended for distri-
bution to disaster victim;
(f) Forcibly seizing relief goods, equipment or
other aid commodities intended for or
consigned to a specific group of victims or
relief agency;
(g) Diverting or misdelivery of relief goods,
equipment or other aid commodities to
persons other than the rightful recipient or
consignee;
(h) Accepting, possessing, using or disposing
relief goods, equipment or other aid commo-
dities not intended for nor consigned to
him/her;
(i) Misrepresenting the source of relief goods,

equipment or other aid commodities by:
(1) Either covering, replacing or defacing

the labels of the containers to make it
appear that the goods, equipment or
other aid commodities came from
another agency or persons;
(2) Repacking the goods, equipment or
other aid commodities into containers
with different markings to make it
appear that the goods, came from
another agency or persons or was
released upon the instance of a
particular agency or persons;
(3) Making false verbal claim that the
goods, equipment or other aid
commodity in its untampered original
containers actually came from another
agency or persons or was released
upon the instance or a particular
agency or persons;
(j) Substituting or replacing relief goods, equip-

ment or other aid commodities with the same
items or inferior/cheaper quality;
(k) Illegal solicitations by persons or organizations
representing others as defined in the standards
and guidelines set by the NDRRMC;
(1) Deliberate use of false or inflated data in
support of the request for funding, relief
goods, equipment or other aid commodities
for emergency assistance or livelihood
projects; and
(m) Tampering with or stealing hazard monitoring
and disaster preparedness equipment and
paraphernalia.
xxx
Sec. 21. Local Disaster Risk Reduction and Management Fund

(LDRRMF). -The present Local Calamity Fund shall
henceforth be known as the Local Disaster Risk Reduction
and Management Fund (LDRRMF). Not less than five
percent (5%) of the estimated revenue from regular sources
shall be set aside as the LDRRMF to support disaster risk
management activities such as, but not limited to, pre-
disaster preparedness programs including training,
purchasing life-saving rescue equipment, supplies and
medicines, for post-disaster activities, and for the payment
of premiums on calamity insurance. The LDRRMC shall
monitor and evaluate the use and disbursement of
LDRRMF based on the LDRRMP as incorporated in the
local development plans and annual work and financial
plan. Upon the recommendation of the LDRRMO and
approval of the sanggunian concerned, the LDRRMC may
transfer the said fund to support disaster risk reduction
work of other LDRRMCs which are declared under state of
calamity.
Of the amount appropriated for LDRRMF, thirty percent

(30%) shall be allocated as Quick Response Fund (QRF) or
stand-by fund for relief and recovery programs in order
that situation and* living conditions of people in
communities or areas stricken by disasters, calamities,
epidemics, or complex emergencies, may be normalized as
quickly as possible.
Unexpended LDRRMF shall accrue to a special trust fund

solely for the purpose of supporting disaster risk reduction
and management activities of the LDRRMCs within the
next five (5) years. Any such amount still not fully utilized
after five (5) years shall revert back to the general fund and
will be available for other social services to be identified by
the local sanggunian.
SEC. 22. National Disaster Risk Management and Recovery

Fund. -
a. The present Calamity Fund appropriated

under the annual General Appropriations Act
shall henceforth be known as the National
Disaster Risk Reduction and Management
Fund (NDRRM Fund) and it shall be used for
disaster risk reduction or mitigation, pre-
vention and preparedness activities such as
but not limited to training of personnel, pro-
curement of equipment, and capital expend-
itures. It can also be utilized for relief,
recovery, reconstruction and other work or
services in connection with natural or human-
induced calamities, which may occur during
the budget year or those that occurred in the
past two (2) years from the budget year.
b. The specific amount of the NDRRM Fund and
the appropriate recipient agencies and/or
LGUs shall be determined upon approval of
the President of the Philippines in accordance
with the favorable recommendation of the
NDRRMC.
c. Of the amount appropriated for NDRRM
Fund, thirty percent (30%) shall be allocated as
Quick Response Fund (QRF) or stand-by fund
for relief and recovery programs in order that
situation and living conditions of people in
communities or areas stricken by disasters,
calamities, epidemics, or complex emergencies,
may be normalized as quickly as possible.
d. All departments/agencies and LGUs that are
allocated with DRRM fund shall submit to the
NDRRMC their monthly statements on the
utilization of DRRM funds and make an
accounting thereof in accordance with existing
accounting and auditing rules.
e. All departments, bureaus, offices and agencies
of the Government are hereby authorized to
use a portion of their appropriations to
implement projects designed to address
DRRM activities in accordance with the

guidelines to be issued by the NDRRMC in
coordination with the DBM.
202
What is Climate Change?
Climate Change is defined in the United Nations Framework

Convention on Climate Change (UNFCCC) as "a change of
climate that is attributed directly or indirectly to human
activity that alters the composition of the global atmosphere
and that is in addition to natural climate variability observed
over comparable time periods."20 3 Although referred to by
many as global warming, many scientists are said to prefer
use of the term climate change due to the fact that while the
Earth, on average, warms up, a few regions may begin to
slightly cool. 204
The general warming of the climate system has been

declared to be unequivocal, evidenced by increases in the
temperature of the air and the ocean. The Fourth
Assessment Report of the Intergovernmental Panel on
Climate Change (IPCC) released in 2007 states that the years
1995 to 2006 have been the "warmest years in the
instrumental record of global surface temperatures." 205 The
melting of snow and ice has sped up and become more
widespread, causing the global average sea level to rise.
Scientists project a warming of approximately 0.2 degrees
202 "Climate Change: Issues, Problems and Challenges in the Philippines" by

Antonio G.M. La Vifia & Cecilia Therese T. Guiao, 3 August 2012,
unpublished.
0 United Nations Framework Convention On Climate Change (UNFCCC),
http://unfccc.int/2860.php (last visited June 2012)
2N Robert Henson, The Rough Guide to Climate Change 6 (2008).
205Leonard S. Bernstein, Climate Change 2007: Synthesis Report, in Inter-
governmental Panel on Climate Change 30A (2007).
NATIONAL LAWS AND POLICIES i 547
Celsius per decade, although should concentrations of

greenhouse gases (GHGs) and aerosols be kept consistent
with year 2000 emission levels, the rise in temperature could
be reduced to 0.1 degrees Celsius instead. All in all, the
global average temperature is likely to rise from around 1.1
to 6.4 degrees Celsius by 2080 to 2090, relative to 1980 to 1999
temperatures. 206
Report of the Intergovernmental Panel on Climate Change

(2007)w
" Warming of the climate system is unequivocal, as is now

evident from observations of increases in global average air
and ocean temperatures, widespread melting of snow and
ice and rising global average sea level
" Global GHG emissions due to human activities have grown
since pre-industrial times, with an increase of 70% between
1970 and 2004
* Global atmospheric concentrations of C02, methane (CH4)
and nitrous oxide (N20) have increased markedly as a
result of human activities since 1750 and now far exceed
pre-industrial values determined from ice cores spanning
many thousands of years.
" Most of the observed increase in global average
temperatures since the mid-20th century is very likely due
to the observed increase in anthropogenic GHG
concentrations. It is likely that there has been significant
anthropogenic warming over the past 50 years averaged
over each continent (except Antarctica)
2m Leonard S. Bernstein, Climate Change 2007: Synthesis Report, in Inter-

governmental Panel on Climate Change 12 (2007).
207 Leonard S. Bernstein, Climate Change 2007: Synthesis Report, in Inter-
governmental Panel on Climate Change 30A (2007).
Does climate change cause super-typhoons?
Studies have shown that an abrupt change in typhoon count

in the vicinity of Taiwan occurred in the year 2000.
According to an article written by Tu, Chou and Chu, "[o]n
average, 3.3 typhoons per year have been noted before 2000
(1970-99), with the rate increasing to 5.7 typhoons per year
since 2000 (2000-06). This abrupt change is consistent with a
northward shift of the typhoon track over the western North
Pacific-East Asian region and an increase of typhoon
frequency over the Taiwan-East China Sea region. The
northward shift of the typhoon track tends to be associated
with typhoon-enhancing environmental conditions over the
western North Pacific, namely, theweakening of the western
North Pacific subtropical high, the strengthening of the
Asian summer monsoon trough, and the enhanced positive
vorticity anomalies in the lower troposphere. Based on
observational analysis and model simulations, warm sea
surface temperature anomalies over the equatorial western
and central Pacific appear to be a major factor contributing to
a northward-shifted typhoon track. '208
In the Philippines, the Manila Observatory in 2012 identified

Typhoon Sendong as an "extreme weather event," especially
considering the amount of total accumulated rainfall in one
day. Precipitation associated with this typhoon much higher
than normal; PAGASA Lumbia Station data signified a total
of 180mm of rainfall in Cagayan de Oro City in one day -
63mm more than the 117mm monthly average based on
1977-2005 data.
2W Tu, Chou and Chu. 2009. The Abrupt Shift of Typhoon Activity in the
Vicinity of Taiwan and Its Association with Western North Pacific-East
Asian Climate Change. Journalof Climate 22: 3617-3628.
NAIONAL LAWS AND POLICIES I 549
Tropical cyclones are known to hit Mindanao far less

frequently than Luzon and Visayas. From 1883 to 1900, there
was an average of one typhoon a year in the region, although
in the past 15 years only six typhoons passed through
Mindanao. Data from the Joint Typhoon Warning Center
(TWC) shows that there is roughly only one typhoon that
goes through Mindanao every 10 years in the month of
December.
As it is, it is very difficult to attribute one extreme event to
climate change-a definite conclusion as to whether or not
Sendong is brought about by climate change therefore cannot
be made. Attribution is a complex topic that the IPCC is still
addressing, although the scientific consensus is that extreme
weather events are going to become more commonplace with
climate change.
Never Again A Sendong

Climate change, known to many people by the more popular
phrase "global warming," is the most serious environmental
problem the world confronts. It results from the accumulation
of greenhouse gasses in the atmosphere, both natural and
human-induced, with the latter source increasing in this
century because of human activity. Most economic activities
emit these gasses: energy production and consumption,
transportation, agriculture and forestry, real estate, industry
and manufacturing, and so on. National boundaries are
irrelevant in dealing with the challenges of climate change. It
is caused by human activities in all countries. Its impacts are
felt in all countries regardless of their respective contributions
to climate change. In fact, the greatest injustice of climate
change is that the poorest countries and the poorest
communities within the countries that have contributed the
least to this problem will not only be the first ones to suffer -
they will also be the ones to suffer the most.
For the Philippines, climate change is about effect. Our

contribution to the problem is miniscule because of the scale of
our economy, but we are at the forefront of the countries that
will suffer most from the climate change. Our agriculture and
food security will be affected. Public health epidemics are
likely to increase. Existing threats to marine and coastal
resources and our already stressed natural resources in forests
and uplands will be aggravated. There will be increased risks
to human habitations in coastal areas and in geologically
sensitive places. For sure, natural disasters - from stronger
storms, more rainfall, intense droughts, etc., will increase in
number and magnitude because of climate change. Already, in
2009, the Philippines is considered to have experienced the
most disasters according to the reputable Center For Research on
the Epidemiology of Disasters.
Whether we like it or not, and whatever we do now, climate

change is a given -it will affect the country. The poor are most
vulnerable, but as the experience of Typhoons Ondoy and
Pepeng illustrate, the rich will also not be spared. As a country
with limited resources, our response should focus on helping
our farmers and fisherpersons adapt to climate change, reduce
risks brought by disasters, build a public health system that
helps the poor, conserve our forests and other natural
resources, etc. We should still do mitigation and minimize our
own contribution to climate change by cutting emissions
wherever we can, but we should emphasize mitigation
measures that are consistent with our adaptation goals.
Government has been pro-active in climate change since the

early 1990s. In 2009, Congress enacted the Climate Change Act
of 2009 designed to mainstream climate change into
government policy. It creates the Climate Change Commission
headed by the President and joined by a Vice-Head and two
other commissioners. In May 2009, the Commission adopted
the National Framework Strategy on Climate Change, a
document that is based on the integrated adaptation-
mitigation approach described earlier.
Will the new law be effective in helping the Philippines

address the challenge of climate change, however? It remains
to be seen if that will be the case. Already there are calls to
amend the law based on concerns that it does not create a
good institutional mechanism for dealing with the problem.
Through the years, climate change has become very personal

to me. How could it not be? I have three sons whose
generation will inherit this Earth. I do not want to leave them
and their children this problem not only unsolved but also
aggravated. I work to combat climate change and intend to do
so for the rest of my life because, in the words of a Japanese
poem I paraphrased in Kyoto, Japan in 1997, "I do not want to
be afraid of the rains and long for the memory of how they
once made our mountains more beautiful to see and I do not
want to weep for my children as I watch the sea."
It is ironic that the morning after Typhoon Sendong struck my

hometown of Cagayan de Oro City in late 2011, I was flying
home to Manila after nearly three weeks in Africa, where I was
a member of the Philippine delegation to the annual United
Nations-sponsored climate change negotiations. Although the
Philippines tried hard -being an influential player in the
negotiations -to help the world address climate change, little
progress has been achieved. Because of this, climate change
will only get worse in the future, and we must prepare for the
worst.
We must therefore identify and implement priorities so that

never again will a disaster such as Sendong be repeated in
Mindanao or anywhere else in the Philippines. I propose a
number of priorities according to their urgency - those which
are short-term (priorities 1-6), medium-range (priorities 7-9)
and long-term (priority 10).
Priority 1: Getting back to normal. For closure to happen for

most survivors, the government must prioritize tasks that
would bring things back to normal as soon as possible. These

include cleaning up the streets, restoring water, and repairing
damaged infrastructure. As soon as possible and where
alternatives exist, public schools used for evacuation centers
must be restored to their prior use; children should go back to
their classrooms and instruction be normalized.
Priority 2: Resettling the poor survivors. Highest priority must

be given to resettling the poor survivors, those who were
living in unsafe areas and who should not be allowed to go
back to their previous homes. The support and actions of
public-private partnerships that have been struck between
national and local governments and such groups as Gawad
Kalinga, Habitat for Humanity, the UN Habitat, the Philippine
National Red Cross, and others are very much welcome.
Priority 3: Assisting middle class survivors. It is necessary to pay

attention to what I call the "forgotten survivors"-the middle
class families who were also affected by the Sendong disaster.
Indeed, the floods that hit both Cagayan de Oro and Iligan
cities did not discriminate between rich and poor. By and
large, however, those belonging to the middle class were left
on their own and their particular needs were not given
attention. To some extent, as was my personal experience with
my own relatives, the middle class survivors were able to take
care of themselves and stand up on their own. But for the long
haul, some help is needed. For example, the government
should develop a financial assistance program that could help
these survivors to rebuild their homes or adapt such homes for
future disasters. Assistance should also be provided to those
who have to move out of their current homes where it is clear
that is no longer viable to live there.
Priority 4. Helping the business sector. Related to assisting

middle class survivors is helping the business community of
the affected places to stand on its feet. There should be an
honest appraisal of economic impacts and mitigation measures
must be quickly identified. More specifically, financial
assistance may also be needed so that business can return to

normal quickly. As was done in the Pinatubo disaster, reprieve
for loans and concessions in tax obligations could be good and
effective strategies not only for the private sector but also for
the middle class survivors mentioned earlier.
Priority 5. Time now to emphasize accountability. After proper

investigation and following due process, it is critical that the
appropriate criminal, civil and administrative cases are filed
against accountable officials. I would especially want charged
those officials who abetted the activities that exacerbated the
disaster or those who had the information and the power to
prevent it (but negligently did not do so). Lessons must be
taught if a disaster like Sendong is not to be repeated.
Priority 6. Be better prepared. The real disaster in natural

disasters is our failure to prepare for what we now know is
inevitable. We must quickly put into place disaster
preparedness measures-better forecasting, more effective
warning systems (based on expected rainfall, for example),
improved inter-LGU cooperation (Bukidnon could have
warned Cagayan de Oro about what was coming), disaster
risk mapping, evacuation plans, and necessary physical
infrastructure and interventions to reduce risk. Knowledge of
best practices should be shared and disseminated .so every
community stand a fighting chance against the worst disasters.
Priority 7. Reduce risks to disasters. Together with being

prepared, we must reduce our risks to disasters. The Disaster
Risk Reduction and Management (DRRM) Act of 2010 lays this
down as national policy, but it fails to do one thing many
experts have said is necessary-the creation of a full time,
independent disaster agency. The military and the defense
establishment should rightly lead disaster response, rescue
and relief, but they are not equipped to lead the work on
reducing risks. A civilian and expert-led body, headed by a
cabinet-level official reporting directly to the President, is
necessary for this. Congress must amend the DRRM law to
make this happen.
Priority 8. Addressing the roots. We must understand and

address the root causes of why Sendong caused so much death
and destruction. There is of course the reality of climate
change; this should make us realize that Sendong was not a
singular event but could be part of a new pattern. Accepting
this as a permanent reality, we must now confront some hard
facts: our settlement patterns are not sustainable; deforestation
and land degradation must be reversed, which means putting
a stop to all logging and mining in all surrounding areas
(including in the Autonomous Region of Muslim Mindanao)
and making agriculture more sustainable; and a massive
reforestation and revegetation effort must be immediately
launched. We must enforce our environmental laws strictly.
Destructive and extractive activities, such as logging and
mining (legal or illegal, small scale or large scale) and
unsustainable agriculture, should be prohibited.
Priority 9. Implementing adaptation. The most common-sense

approach to respond to climate change is to design and
implement adaptation programs. This is not rocket-science. In
fact, the National Climate Change Action Plan is, at its core, an
adaptation program. Adaptation requires us to know where
we are vulnerable and what is needed to lessen the risks to us.
Every town an Ecotown, designed to be resilient as well as light
on the environment, should be our goal.
Priority 10. Deal with climate change. We must address, as a

society and a member of the global community, the problem of
climate change. Unless we reduce the greenhouse gas
emissions we are all loading into the atmosphere, climate
change will always run ahead of us and our vulnerability will
only increase. While the Philippines is currently not a major
contributor to climate change, we must do our part as well and
stop building coal and other fossil fuel plants that make us lose
the moral authority to call on other countries to reduce their
emissions.
Is Sendong bound to be repeated? Yes, it is; because of climate

change, this is certain. But, if we implement the ten identified
priorities, its impacts need not be as tragic and horrible as it
was in December 2011. Never again a Sendong-we
Mindanawans and Filipinos must promise this to ourselves
and to our children.
Taken from
10 August 2010, Manila Standard Today
Climate Change: Up Close and Personal
Rapper.com - a
22 December 2011
After Sendong: 10 Things We Must Do

Dean Tony La Vifia
17 February 2012
Never Again A Sendong: 10 Priorities

ANNEX A
Survey of Writs of Kalikasan

Granted I I Agham Party [Approx. Re: Proliferation of
List vs. Paje February fish cages in Taal
and TVPL- 15, 2012 Volcano Protected
PAMB based on Landscape, as well
the date of as the below
the news standard water
articlel oualitv
2 Agham Party June 13, Re: Leveling of a
List vs. LNL 2012 mountiain in
Archipelago relation to mining
Minerals, Inc. activities in Sta.
Cruz, Zambales
3 Writ of [Date not Re: Multi-location
Kalikasan to indicated] field trials of
stop BT genetically altered
Talong Field eggplants that can,
Trials in effect, produce
their own
pesticides
4 Writ of [Date not Re: Validity of
Kalikasan to indicated] mining agreement
top large for not having
scale mining been signed by the
in ilocos and President of the
Pangasinan Philippines, and
for lack of prior
consultations
Philippine [Date not Re: Mining in the
Earth Justice indicated] Zamboanga
Center Inc., et Peninsula; 51% of
al. vs. the peninsula's
Secretary of land mass already
DENR, et al. approved for
mining activities
L I
556
Hernandez June 21, Re: Severe

vs. Placer 2011 pollution of land
Dome Inc. and waters due to
(Marcopper failure to
tragedy) rehabilitate after
engaging in
minin activities
7 West Tower [Nov. 19, Re: Continuous
Condo- 2010,1 operation of a
minium leaking pipeline
Corporation system
vs. First
Philippine
Industrial
Corporation
8 Writ of [Date not Re: Preventing the
Kalikasan indicated] implementation of
issued against a plan to reclaim
a reclamation land covering the
project in cities of Las Pifias,
Manila Baty Paranaque and
Bacoor in Cavite
9 Writ of [July 20, Re: Petition to stop
Kalikasan 2012 - the construction of
issued against date when a coal-fired plant
Subic coal- it was due to health risks
fired plant filed] posed against
residents of
Zambales and
Bataan
Writ of [February Re: Petition to stop
Kalikasan 21,2012] the construction of
issued against a private landfill
Obando, on 45 hectares of
Bulacan land beside Manila
coastal Bay
landlfill
Denied 11 Case of a [Date not Re: The

denied indicated] dismantling of
petition for electricity
Writ of transmission poles
Kalikasan and lines near
filed in CA houses of Pasay
vs. and Makati
MERALCO residents
AGHAM PARTY LIST vs. RAMON PAJE,

The PROTECTED AREA MANAGEMENT BOARD OF
THE TAAL VOLCANO PROTECTED LANDSCAPE
(TVPL-PAMB) 2 9
Facts:
Agham Party List, in its petition for the issuance of a Writ

of Kalikasan, alleged that the respondents had violated or
threaten to violate petitioner's Constitutional right to a
balanced ecology, including its other Constitutional rights
relating to the Taal Volcano Protected Landscape.
The Agham Party List grounded its action on the fact that
its members were allegedly disturbed by the proliferation
of fish cages in Taal Lake to a point exceeding its
established carrying capacity. Also, the party list brought
forth the issue that despite efforts to improve the water
quality of Taal Lake, the same still fell below standards in
the vicinity of the fish cages. It likewise called attention to
the abusive piggeries operating in the area. The party list
insisted that because of the nutrient loading brought forth
by the fish and hog industries, the Taal Lake's original
mesotrophic-to-oligotrophic state has now to turned
eutrophic, which it backed up with scientific studies.
w9 Full-text of Supreme Court decision not available; Writ of Kalikasan, in

Agham.org.ph, http'J/www.agham.org.ph/blog/writ-of-kalikasan.html; Sun
star.com (2012), http://www.sunstar.com.ph/breaking-news/2012/02/15/con
vening-taal-lake-management-set-206235)
Agham also instilled a sense of urgency to the petition by

alleging that this alarming situation places Taal Lake in
imminent and grave danger of breaching a point where
any of the State's conservation efforts, no matter how
intense, will be futile. It accomplished this by explaining
the nature of Taal Lake: that it has a long retention time
making it a very sensitive ecosystem since its waters need
20 years or more to be flushed out or replaced; that long
water retention times means that in-lake changes are often
gradual in nature, thereby difficult to observe; that having
a long water retention time also means that the expected
improvements from implementing remedial measures for
specific lake basin problems may take a long time to
exhibit visible results."21 0 Furthermore, Agham cited recent
alarming incidents that happened in Taal, including (1) the
reported May to June 2011 bangus fish kill in Taal where
2,105.843 metric tons of fish worth at least P148.7 million,
majority of which were milkfish ("bangus"), died due to a
substantial temperature change in the water, and (2) the
December 10, 2011 hog waste incident where a large
volume of piggery waste covering at least half a hectare
was seen from the shores of Taal Lake fronting Lipute
River in Mataas na Kahoy, Batangas. To top everything off,
Agham appealed to the emotions of the Court by stating
that The Taal Volcano Protected Landscape is composed of
13 towns and the three cities of Tagaytay, Tanauan and
Lipa which are not only heavily populated but also a major
national tourist attraction.
To convince the Court that the remedy they seek is apt and
appropriate, the party list argued that the Writ of
Kalikasan is a favored remedy for cases such as this since
"the Rationale to the Rules of Procedure for Environmental
Cases states that the 'writ... was refashioned as a tool to bridge
the gap between allegation and proof by providing a remedy for
would-be environmental litigants to compel the production of
information within the custody of government. ...The scope of the
2o Id.
fact-finding power could be; (1) anything related to the issuance,

grant of a government permit issued or information contained in
documents such as environmental compliance certificate and
other government records. -211 Put simply, Agham asserts
that a Writ of Kalikasan will not only allow "the right to
information on the permit holders and the presence,
absence or validity of their prerequisites but also provide
the government agencies with the impetus to work
together within the framework of the NIPAS Act and the
PAMB to charge parties liable for the disposition of wastes
from piggeries, the overstocking that led to the fish kill, to
charge the costs incurred as well as to assess and pinpoint
accountability for rehabilitation of the ecosystem damage
(supra)." The party list asserted that the continuing
deterioration of the water quality of Taal Lake coupled
with its nature makes it imperative that the best and fastest
remedy is secured so that generations to come may again
experience the lake in its original state. This "best" and
"fastest" remedy is the Writ of Kalikasan, the party said.
Ruling:
"'he SC granted the petition filed by Agham Rep. Angelo

Palmones for the issuance of a temporary environmental
protection order (TEPO) or writ of Kalikasan for the
government to fully implement two laws calling for the
phase-out of fish cages and fish pens beyond 2000 in a bid
to protect a balanced and healthful ecology. Specifically,
the Writ of Kalikasan mandated the respondents to refrain
from issuing any PAMB clearances for fish cage operations
within Taal Lake in compliance with Sec 45 of RA 8550
and, to draft, submit and execute an implementation plan
for the dismantling of illegal cages starting with the ones in
Talisay, Batangas.
Named respondents were Environment Secretary Ramon

Paje, in his capacity as overall chair of the multi-sectoral
211Id.
group Protected Areas Management Board (PAMB), which

oversees all government-declared protected landscapes;
Taal Volcano Protected Landscape (TVPL)-PAMB chair
Reynulfo Juan; and Protected Area Supt. Laudemir Salac.
The high court gave them 10 days to answer the
petition."M
G.R. No. 201918

3
Agham Party List v. LNL Archipelago Minerals, InC r
June 13, 2012
Facts:
Residents of Barangay Bolitoc, Sta. Cruz, Zambales

complained to Agham party-list Rep. Angelo Palmones
and Laguna Rep. Danilo Fernandez, chairman of the
committee on ecology of the House of Representatives
regarding the mining in their area. These grievances
prompted the two congressmen to conduct on-site
inspection.
Upon arrival in the area where the mining is being

conducted, the two congressmen were confronted by
heavily armed men. After inspection, Fernandez's panel
recommended to the Environment and Natural Resources
Secretary Ramon Paje the issuance of a cease and desist
order (CDO) against the "irresponsible mining firm." Come
June 4, 2012, or more than a month after the congressmen
pointed out the alarming destruction of environment to
Secretary Paje and the police, LAMI's backhoes were still
conducting mining activities. "LAMI continued to destroy
the environment by cutting mountain trees and leveling a
mountain to the damage and detriment of the residents of
Zambales and of the nearby towns of Pangasinan, without
2= Malaya.com.ph (2012), http://archive.malaya.com.ph/2012/February/020820

12/ newsll.html.
213Supreme Court, in SC.judiciary.gov.ph (2012), http://sc.judiciary.gov.ph/
pio/news/2012/06/06211201.php; PhiUStar.com (2012), http://www.philstar.
com/nation/article.aspx?publicationsubcategoryid=200&articleid=819168.
any of the concerned government agencies and officials

stopping such illegal actions and or worse, condoning the
214
same."
This development prompted Palmones to file with the

Supreme Court a petition seeking the issuance of a Writ of
Kalikasan.
"The special civil action for issuance of a writ

of kalikasanwith Application for a Temporary Environ-
mental Protection Order was filed against LNL Archi-
pelago Minerals Inc., the Department of Environment and
Natural Resources, represented by Secretary Ramon Jesus
P. Paje; Philippine Ports Authority, represented by General
Manager Juan C. Sta. Ana; and the Zambales Provincial
Police Office, represented by PS Supt. Francisco DB
215
Santiago."
In the 12-page petition to the Supreme Court, Palmones

attached 60 pages of annexes that contained photographic
stills of the site showing its state prior to and preceding the
leveling of the mountain. The pictures depicted, among
other things, that the excavated soil were pushed towards
and reclaiming the sea and destroying the corals and
natural habitat of the fishes. Affidavits of complaining
residents were also attached to the petition. Palmones
further alleged that LNL Archipelago Minerals Inc. (LAMI)
had begun flattening a mountain in the vicinity of
Barangay Bolitoc, Sta. Cruz, Zambales. This mountain is
important because it serves as a natural protective barrier
of the residents of Sta. Cruz, Zambales and the residents of
some of the adjacent towns of Pangasinan from typhoons
and floods. Once this natural barrier is damaged
substantially, the residents of these two provinces will be
defenseless against typhoons and floods resulting in their
lives, health and properties being in constant risk of being
214 Id.
215 Id.
lost or destroyed. Palmones further averred that the

residents' side was never sought in a discussion or any
consultation before LAMI began its operations.
Regarding the technicalities, Palmones said that the permit

to construct issued in favor of LAMI did not authorize it to
cut mountain trees nor flatten a mountain for the
construction of its port. The DENR did issue an
environmental compliance certificate (ECC) but it was just
a "planning tool" and not a permit. Moreover, the ECC
required LAMI to secure pertinent permits and clearances
from all the concerned government agencies. This, the
LAMI failed to comply with.
Ruling:
"The Supreme Court granted the issuance of the writ

of Kalikasan sought by Agham Party List Rep. Angelo
Palmones, against Paje, LAMI president Lawrence Lenio
and general manager Philip Floria, Philippine Ports
Authority (PPA) general manager Juan Sta. Ana, and
Zambales Police provincial director Superintendent
Francisco Santiago Jr.
The Court also referred the case to the Court of Appeals for
acceptance of the return of the writ and for hearing,
reception of evidence, and rendition of judgment. The
Court also ordered the respondents to answer the charges,
by making a "verified return of the Writ of Kalikasan before
the Court of Appeals within a non-extendible period of
'2 6
(10) ten days from receipt. 1
216 Id.
217
The Writ of Kalikasan to stop Bt Talong Field Trials
Facts:
A petition was filed in April 26, 2012 seeking a temporary

environmental protection order (TEPO) and an issuance of
a Writ of Kalikasan to stop the ongoing field trials of
the Bacillus thuringiensis(Bt) eggplant, which was gene-
tically modified to incorporate a gene from the Bt bacteria,
which enables it to secrete its own pesticide against
destructive insects.
"Among the petitioners who sought the TEPO were former

Senator Orlando Mercado, Puerto Princesa Mayor Edward
S. Hagedorn, Rep. Teodoro Casiflo, Dr. Charito Medina of
the scientists and farmers group Magsasaka at Siyentipiko
sa Pagpapaunlad ng Agrikultura (MASIPAG), lawyers
Harry Roque and Maria Paz Luna, scientists Dr. Ben
Malayang III of Silliman University and Dr. Romeo
Quijano of University of the Philippines College of
Medicine, Leo Avila of the Davao City Agriculturist's
Office, Catherine Untalan of Miss Earth Foundation, and
activist-musician Noel Cabangon.
On the other hand, the respondents of said petition were

the Environmental Management Bureau (EMB) of the
(DENR), Bureau of Plant Industry (BPI) and the Fertilizer
and Pesticide Authority (FPA) of the Department of
Agriculture (DA), University of the Philippines Los Banos
(UPLB) Foundation, Inc., UP Mindanao (UPMin)
Foundation, Inc. and International Service for the
Acquisition of Agri-Biotech Applications (ISAABA)-
Southeast Asia Center." 8
217 Allvoices.com (2012), http://www.aflvoices.com/contributed-news/121442

16-writ-of-kalikasan-granted-against-bt-eggplant-field-trials-in-the-philip-
pines; Masipag.org (2012), http://masipag.org/cms/index.php?option=com_
content&task=view&id=123&Itemid=2.
218 Id.
'In support of their petition, the petitioners highlighted the

need for a genuine and comprehensive process of
informing and consulting the public to ensure the safety of
Genetically Modified Organisms (GMOs) on people's
health and the environmental before such are released into
the society. Petitioners further argued that GMOs and
GMO field trials clearly violate every Filipino's
constitutional right to a balanced and healthful ecology,
and the invasion into our9 fields and our diets of such
GMOs must be stopped."2
Greenpeace also pointed out an alarming trend in the
Philippine regulatory system governing GMOs.
Greenpeace said that said regulatory system had never
rejected at least one application for GMOs and that it has
allowed the dangerous GMO produce to penetrate our
society and diets despite the growing scientific literature
regarding GMOs' bad effects to health. As a matter of fact,
beginning 2002, there was a total of 67 GMOs for
importation, consumption and/or propagation approved
by the regulatory agencies. Greenpeace also wanted to
hold the Philippine Department of Agriculture (DA)
accountable for not taking a precautionary approach to
GMO, which is the trend followed by developed countries,
but has done exactly the opposite. Greenpeace tried to
establish that many independent scientific studies provide
clear and convincing proof that GMOs such as the Bt
eggplant have the capacity to damage one's liver, kidneys
or blood when ingested. Greenpeace also pointed out that
when the GMOs are planted in open fields, the GMOs
were found to crossbreed with natural species, thus
endangering biodiversity.
Ruling:
The Supreme Court granted the issuance of the writ
of Kalikasan to stop field trials of the genetically-modified
n9 Gene.ch (2012), htp:/www.gene.ch/genet/2012/May/msOO60html.

organism (GMO) Bt eggplant (called Bt talong) in the

Philippines.
The Writ of Kalikasan to Stop Large Scale Mining in
locos and Pangasinanm
Facts:
SENATOR Aquilino "Koko" Pimentel Ill prayed for the SC
to issue a Writ of Kalikasan against a mining scheme in the
provinces of Pangasinan, Ilocos Norte, and Ilocos Sur.
Joining Pimentel in the petition wre party-list
representatives Teodoro A. Casiflo (Bayan Muna),
Raymond V. Palatino (Kabataan), Antonio Tinio (ACT
Teachers), Luzviminda C. Ilagan (Gabriela), Emerenciana
A. de Jesus (Gabriela); locos Sur Mayor Jeremy Jesus
Bueno Ill, and Salcedo, locos Norte Mayor Leonofre
Gironella, several local government officials and residents.
The petitioners alleged that the former Executive Secretary

Leandro Mendoza, acting as the representative of the
former president Gloria Macapagal-Arroyo, forged a
mining agreement with Altamina Exploration and
Resources, Inc. one day before President Benigno Aquino
Ill assumed his position as president of the Philippines.
Ergo, they claim it was a "midnight mining deal."
Petitioners also argued that the FTAA should have been
signed by then Pres. Gloria Arroyo, herself, and not by her
Executive Secretary. In support of this contention, they
invoke the 1987 Constitution, which states 'it is the
President of the Philippines who must enter into
12 Remate.ph (2012), http://www.rerate.ph/2012/05/sc-iwues-writ-of-kalika

san-vs-large-scale-mning-in-ilocos-pangasinan/; Joumal.conmph (2012),
http://www.jounal.com.ph/index.php/news/national/29297-writ-of-kalika
san-sought-vs-mining-projecLt See foilowing articles: https'/environmental
lawsummer2012.wordpress.com/category/mining/; http:/cuademroiocano.
blogspotcom/2012/05/response-of-supreme-court-for-writ-of.html; http://
paulgeniusboy.blogspotcom/2012/05/sto-black-sand-mining-in-ilocos.html
agreements involving financial or technical assistance

related to the large-scale exploration, development, and
utilization of minerals, petroleum, and other mineral oils."
The petitioners revealed that the mining operation's goal

was to extract magnetite ore in the shore and offshore areas
of the Ilocos to Pangasinan coastline. Magnetite, also
known as black sand, is used to produce steel, toners for
photocopying machines, micro-nutrient in fertilizers, and
high-density concrete. In relation to this, the petitioners
averred that magnetite, or locally termed 'black sand,' is
also an "important mineral that should remain in its
natural environment because it keeps sand particles
heavier and more compressed" thus serving as a natural
barrier of land surfaces and fresh water deposits from
seawater and ensures that seawater is at a lever lower than
land surface area.
An additional ground cited for the granting of the petition
was that the mining agreement was invalid for not having
been signed by the President and for being awarded
without prior consultations with the concerned local
government units. The petitioners are afraid that the
mining project will result in saltwater flooding, soil
erosion, and landslides, and will displace families living
along and near the shoreline. The petitioners also claimed
that is the poor local fishermen who will bear the brunt of
the mining operation. It included reports that baranggays
Subec, Paratong, Sinabaan, Pangada, Cabaroan, Tamorong,
Cabittaogan, and Poblacion Sta. Catalina experienced
"massive and worsening coastal erosions and shoreline
retreat since 2010," by around 150 meters from 2011 to
2012, and 100 meters from Jan. to Feb. of 2012 in Paratong
and Tamorong. To gain more persuasive power, the
petitioners cited recent studies by Brown and McLachlan,
Continental Shelf Associates, Inc., Crutchfield, the United
States National Oceanic and Atmospheric Administration
Technical Memorandum, and Center for Environmental
Concerns-Philippines that detailed the adverse effects of
exploration and extraction processes on the environment

and human life."
Ruling:
'The Supreme Court issued a Writ of Kalikasan (nature)
directing mining firm Altamina Exploration and
Resources, Inc., President Benigno S. C. Aquino IlI, and
two others to reply to the petition fied by several
lawmakers and local government officials seeking to stop
the firm's mining activities in Pangasinan, Ilocos Sur and
locos Norte.
Promulgated by the full court on May 8, the writ ordered

respondents Altamina; Mr. Aquino, as successor of former
president Gloria Macapagal-Arroyo; Executive Secretary
Paquito N. Ochoa, Jr., as successor of Leandro R. Mendoza;
and Environment Secretary Ramon Jesus P. Paje "to make a
verified return of the Writ of Kalikasan... within a non-
extendible period of 10 days from receipt hereof."
G.R. NO. 197754

Philippine Earth Justice Center Inc., et. al vs.
Secretary of Department of Environment and
Natural Resources et. al.m
Facts:
The petitioners in this case are Philippine Earth Justice
Center Inc. (PEJC), Alliance to Save the Integrity of Nature,
Inc. (ASIN), Kesalubuukan Tupusumi Organization, and
all other individual petitioners who are residents in
Zamboanga Peninusula, whose names and personal
circumstances are found in the verification and
certification, who are suing on their behalf and on behalf of
the minor Filipinos and of generations of Filipinos yet
unborn.
z1 Elaw.org (undated), http://www.elaw.org/system/files/Writ+of+Nature+

(Kaikasan)+v.+Mining+Phils.pdf.
NAnoNA. LAws AND POUCES I 569
The respondents in this case, on the other hand, are
Secretary Ramon Paje as the head of the Department of
Environment and Natural Resources (DENR), Mines and
Geosciences Bureau (MGB), Protected Areas and Wildlife
Bureau (PAWB), National Commission on Indigenous
Peoples (NCIP), mining companies and entities with stakes
in Zamboanga Peninsula.
The petitioners alleged that this petition is urgent lest the

last of the peninsula's remaining forests will be cut off and
its mountains flattened or made hollow underneath.
One of the bases for the petition for issuance of the Writ of
Kalikasan is the petitioners' allegation that the respondents
violated or threaten to violate petitioners' right to ecology.
Mining necessitates moving soil to be able to reach and
extract the ores containing the desired minerals deep
within the earth. Thus, there is no way that the physical
landscape will not be altered or destroyed along with the
greenery on top the petitioners argue. They also point out
that when the forests disappear, the habitats of flora and
fauna follow and watersheds will run dry.
Furthermore, the petitioners argued that the damage to the

environment brought about by mining does not end with
the moving of soil and the flattening of mountains;
segregative process will still be applied wherein the
precious substances is isolated from the larger mass of less
valuable materials. This larger mass of less valuable
materials is then discarded as waste. The petitioners gave
the case of copper mining as an example: almost 95.5% of
materials mined are rejected and become mine wastes.
These wastes coming from mining activities, the petitioners
allege, may result in land degradation, ecosystem
disruption, acid mine drainage, chemical leakages, slope
failures, toxic dusts, among others. The scale of this danger
is magnified, according to the petitioners, in the case of
Zamboanga Peninsula because 170 mining agreements, at
present, are already being entertained or otherwise being
approved. All these permits taken together comprise a
total of 808,269.09 hectares, which is about 51% of

peninsula's land mass. Indeed, the threat to the
environment had become very real and imminent.
Aside from what the petitioners cited as the violations or

threatened violations of their constitutional right to live in
the rhythm and harmony of nature, the petitioners also
alleged the lack of capacity of the private respondents to
properly enforce environmental regulations given the
vastness of the area being opened and subjected to mining
and the track record of the respondents DENR and MGB.
To bolster this argument, the petitioners cited the
environmental catastrophes in Rapu-rapu and Semirara
islands which are directly caused by irresponsible
operations of mining companies permitted by public
respondent MGB.
Another basis for this petition was the alleged capricious

issuances of Mining Tenements, which violated Sec. 19 (f)
of R.A. 7942. Sec. 19 (f) of the Mining Law. This disallowed
the acceptance of mining applications in areas of old
growth or virgin forests, proclaimed watershed forest
reserves and in areas expressly prohibited under NIPAS
and other laws. The petitioners further buttressed their
petition by alleging that respondents violated the
prohibition in Sec. 20 (f) of the NIPAS Law when the
respondents issued the mining permits in the Zambaonga
peninsula covering areas, which are part of the eleven (11)
sites inside Zamboanga Peninsula that have been declared
as protected areas under the NIPAS Act. It was also alleged
that the respondents violated Sec. 27 (c) of Republic Act
9147, which considers mineral exploration and/or
extraction inside critical habitats of critical, endangered or
vulnerable wildlife species as criminal offenses. The
petitioners also claimed that the respondents violated the
Principle of Prior, Free and Informed Consent and other
Environmental law principles under PRA of the
Indigenous Peoples living in the vicinity and that the
Environmental Law Principle on Carrying Capacity was
also alleged to have been violated.
Ruling:
The Supreme Court granted the issuance of the writ
of Kalikasansought by petitioners.
G.R. No. 195482

Hernandez v. Placer Dome Inc. (Marcopper tragedy)=
June 21, 2011
Facts:
The petitioners in this case are three residents of
Marinduque province-Eliza Hernandez, Mamerto Lanete
and Godofredo Manoy -seeking the issuance of a Writ of
Kalikasan against Placer Dome, Inc. and Barric Gold
Corporation. Placer Dome is Marcopper's mother
company and has 39.9 percent of the shares in Marcopper.
Marcopper began its mining operations in 1964, which
continued up to 1997 in Marinduque.
In the petition, the petitioners stressed that Placer Dome

should be held liable for expelling approximately 2 million
cubic meters of toxic industrial waste in the area. The
poisonous wastes were allegedly dumped into the Boac
River after the drainage plug holding toxic mining waste
undergoing process broke. According to records of the
court, the toxic wastes spilled and caused flash floods that
isolated 4,400 people in five villages along the river.
Barangay Hinapulan suffered greater damage because it
was buried under six feet of muddy floodwater where 400
families had to flee to higher grounds. Also, the petitioners
allege that the drinking water was tainted while fish,
freshwater shrimp and pigs were poisoned. As a result of
all these, Placer Dome is considered to have severely
polluted the lands and waters of Marinduque, caused two
22 Elibrary.judiciary.gov.ph. (2001), http://elibrary.judiciary.gov.ph/resolu-

lions. php?doctype=Minute%20Resolutions&docid=1311122752991342703
Manilatimes.net (2011), http://www.manilatimes.net/index.php/news/re
gions/1898-ca-ordered-to-tale-action-on-marcopper-mine-diaser).
cataclysmic environmental disasters, poisoned the

islanders by contaminating their food and water sources,
and then left the province without cleaning up the mess-all
in violation of Philippine law. The petitioners also pointed
out the fact that Placer Dome did not honor its contract
with the former President Fidel Ramos to rehabilitate the
waters in three Luzon provinces-Romblon, Marinduque
and Quezon.
The correctness and appropriateness of the Writ of
Kalikasan as remedy was justified by the petitioners by
expressing their dismay at how five lawsuits against
Marcopper failed to prosper and reiterated through their
legal counsel Fr. Joaquin Bernas that, "...all of these cases
are mired in the courts. After 15 years of litigation, none of
them have (sic) even reached the trial stage," due to lack of
evidence and other technicalities.
RuliW.
"SC issued the Writ of Kalikasan on March 8 in favor of the
three residents of Marinduque province. The SC stated in
its ruling that pursuant to Section 3, Rule VII of the Rules
of Procedure for Environmental Cases, that a "petition for
the writ of kalikasan shall be filed with the Supreme Court
or with any of the stations of the Court of Appeals."
"It was in consonance with this provision that, the
(Supreme) Court issued the resolution which, after
granting the writ (of kalikasan) sought by petitioners,
referred the case to the CA for hearing, reception of
evidence and rendition judgment," the SC en banc noted.
The Supreme Court ordered the Court of Appeals to hear
and decide the case of the Marcopper mining tragedy on
March 24,1996 in Marinduque."
NATIONAL LAWS AND POUCES 1 573
G.R. No. 194239

West Tower Condominium Corporation vs.
First Philippine Industrial Corporation [FPIqCJ
Facts:
The West Tower Condominium Corporation, on behalf of
the Residents of West Tower Condo, and in representation
of Barangay Bangkal, and others, including minors and
generations yet unborn filed a petition for issuance of Writ
of Kalikasan against First Philippine Industrial
Corporation (FPIC), First Gen Corporation and their
respective Board of Directors and Officers, John Does and
Richard Roes. FPIC is the operator of the pipeline system,
which transports Chevron and Shell products from
Batangas province to Pandacan. The said pipeline was
found to be the source of the oil that had been leaking into
the basement of the West Tower Condominium in
Barangay Bangkal, Makati City. The petitioners allege in
the petition that their right to a healthful and balanced
ecology was violated by the continuous operation of the
pipeline despite the leak.
Ruling:
"Chief Justice Renato C. Corona granted the Writ
of Kalikasan with a Temporary Environmental Protection
Order (TEPO), requiring the First Philippine Industrial
Corporation (EPIC) and First Gen Corporation (FGC) to
make a Verified Return within a non-extendible period of
ten (10) days from receipt thereof pursuant to Section 8,
Rule 7 of the Rules of Procedure for Environmental Cases.
m Elibrary.judiciary.gov.ph (2011), http://elibrary.judiciary.gov.ph/resolu

tions. php?doctype=Minute%20Resolutions&docid=13119260911184130980;
http://elibrary.judciary.gov.ph/msolutions.php?doctype=Minute%20Resolu
tions&docid=1327889687146143532; http://elibrary.judiciary.gov.ph/ resolu-
tions.php?doctypeMinute%20 Resolutions&docid132555191918099762;
Inquirermnet (2011), http://newsinfoinquirernet/15802/environmental-issue-
raised-in-west-tower-case.
The TEPO enjoined FPIC and FGC to: (a) cease and desist
from operating the pipeline until further orders;
(b) check the structural integrity of The whole span of the
117-kilometer pipeline while implementing sufficient
measures to prevent and avert any untoward incidents that
may result from any leak of the pipeline; and (c) make a
Report thereon within 60 days from receipt thereof."
Writ of Kalikasan issued against a reclamation project in
Manila Bays'
Facts:
There was a P14-billion project to reclaim land along the

Manila Bay coastline. The plan covered three cities: Las
Piftas, Paraftaque and Bacoor. Former Las Piflas
representative Cynthia Villar filed the petition for issuance
of Writ of Kalikasan to stop the enforcement of this project.
Villar joined the Public Reclamation Authority (PRA),
(DENR), Environmental Management Bureau (EMB), city
government of Las Pifias and Altech Contractors Inc.
(Alltech) as respondents.
In her petition Villar attached the signatures of 315,849 Las
Pfias residents and the results of a hydrological services
consultant she hired for the purposes of the petition. Citing
the report of Tricore Solutions Inc. (Tricore), Villar said
that it is predicted that the implementation of the project in
conjunction with days of heavy rain might cause five-
meter deep floods in 65 barangays. Villar, through her
counsel former solicitor general Frank Chavez, cited as
another ground for the issuance of the Writ of Kalikasan
the high probability that AUTech project would cause
22 GMANetwork.com (2012), http://www.gmanetwork.comnews/story/254

585/news/metromania/sc-issues-wit-of-kalikasan-vs-manila-bay-reclama-
tion-project; Yahoo.com (2012), http://ph.news.yahoo.com/supreme-court-
issues-writ-kalikasan-vs-manila-bay-184128347.htn.
"irreparable" damage and affect more or less 1.5 million

residents in the three cities above stated.
Villar further warned that the project would destroy one of

Metro Manila's last nature reserves and bird sanctuaries,
which was a clear reference to the Las Pifias-Paraftaque
Coastal Lagoon and three mangrove-clad islands therein.
Villar also said that the reclamation project would gravely
affect the Las Pinas-Parafiaque Critical Habitat, which
serves as the home to over 195 bird species and over eight
mangrove varieties. Additionally, Villar avers that the
conversion into a commercial-residential-industrial district
would hinder the natural flow of the Las Pinas, Paraflaque,
and Zapote Rivers and exacerbate the already grave
waterway problem in the Philippines.
Ruling:
'The SC granted the writ of kalikasan but did not issue a

Temporary Environmental Protection Order (TEPO). The
SC said that the government and contractor AllTech
Contractors Inc. (AllTech) could still push through with
the project. Moreover, the SC said the issuance of the writ
was merely "procedural" on all Kalikasan cases filed before
the high court."
Writ of Kalkasan issued against Subic coal-fired plant225
Facts:
The petition for the Writ of Kalikasan was filed in July 20,
2012 by the party-list groups Bayan Muna, Kabataan,
Gabriela, Anakpawis, and Kalikasan together with
residents of Olongapo City, the Subic Bay Chamber for
Health and Environmental Conservation and the No to
Coal-Central Luzon Alliance. The Writ of Kalikasan was
5 Interaksyoncom (2012), http://ww.inte ksyon.com/artide/39234/tepo-

sought-after-sc-issues-writ-of-kalikasan-on-case-vs-subic-coal-fired-plant
http://www.interaksyon.co/assets/docuents/file80212.pdfs
being sought against Redondo Peninsula Energy Inc. (RP

Energy), a consortium of giant power firms (Taiwan
Cogen, Meralco and Aboitiz Power) that plans to build the
P56-billion 600-megawatt power plant.
The petitioners were seeking to stop the construction of the
coal-fire powered plant due to the health risks it poses to
residents of Zambales and Bataan. The petitioners argue
that allowing its construction and operation would violate
the constitutional rights of residents of Zambales and
Bataan provinces to a balanced and healthful ecology, as
well as provisions in the Local Government Code and the
Indigenous Peoples Rights Act. They stressed that Central
Luzon would be faced with more pollution and disasters if
the power plant is allowed to operate.
On July 27, the petitioners led environmental groups and
residents of Olongapo City and nearby towns in Zambales
and Bataan in a rally to express their opposition to the
project, with around 2,000 protesters. Olongapo Vice
Mayor Rolen Paulino and city councilors supported the
rally, stating that the power plant has, in fact, long been
rejected by local government units in the area.
Ruling:
'The Supreme Court has issued a writ of kalikasan against
the Department of Environment and Natural Resources,
the Subic Bay Metropolitan Authority and the Redondo
Peninsula Energy Inc., prompting the petitioners to ask the
high court to also issue a temporary environmental
protection order against the planned establishment of a
coal-fired power plant in Subic Bay Freeport Zone. The
high court has referred the case to the Court of Appeals for
hearing, reception of evidence and judgment.
Writ of Kalkasan Issued against Obando,
Bulacan coastal landflllz
Facts:
The petitioners in this case were residents of Obando. As

for the respondents, they were comprised of Environment
Secretary Ramon Paje, the Environmental Management
Bureau (EMB), Region 3 director Lormelyn Claudio,
Bulacan Gov. Wilhelmino Sy-Alvarado, Bulacan's
Sangguniang Panlalawigan, Obando Mayor Orencio
Gabriel, Obando Sangguniang Bayan, Salambao
Sanggunian Barangay, and Ecoshield Development Corp.
(EDC), and the Pl-billion project's proponent
The petitioners prayed for the Supreme Court to issue a

Writ of Kalikasan to stop the construction of the private
landfill on 45 hectares of land in Barangay Salambao,
which is adjacent to Manila Bay. The petitioners argued
that the landfill would "destroy a mangrove ecosystem.
cause persistent water, air and soil pollution to its
immediate environs, aggravate the condition of the bay,
destroy the livelihoods of coastal residents, and worsen the
current flood problem of Obando and adjacent towns."W
The petitioners further alleged that the officials were
reckless and hasty in their approval of the project which
resulted in the violation of their right to a "balanced and
healthful ecology," and was, furthermore, a willful
disregard of the Supreme Court's 2008 order for the
rehabilitation of the bay. The petitioners also aver that they
had communicated and met with the environment and
local officials a number of times to air their opposition to
the project, but all was for naught. This is the reason why,
z11 Inquirer.net (2012), httpJ/newsoinoiquirer.net155437/high-court-steps-

intbuacan-landfil-dispute-issues
-%E2%80%98writ-of-kamikaan%E2%
80%99.
Z Id.
they said, they resorted to this petition for issuance of Writ

of Kalikasan.
Ruling:
"The Supreme Court issued the 'Writ of Kalikasan' in favor
of the residents. In the Feb. 21, 2012 resolution, "the court
directed the Department of Environment and Natural
Resources and various national, provincial and municipal
officials to show that the proposed landfill did not violate
any environmental law or damage to the ecology to the
detriment of the people. It remanded the case to the Court
of appeals for hearing, reception of evidence and rendition
of judgment, as well as for the acceptance of the return of
the writ."'2
The Supreme Court ordered the respondents, including

Environment Secretary Ramon Paje, to make a verified
return of the writ to the court of Appeals within 10 days of
receipt. It held in abeyance the issuance of a temporary
environmental protection order pending the hearing. The
high court also required the petitioners to file a
consolidated reply to the respondents' comments on their
petition."
Case of a Denied Petition for
Writ of Kahkasan filed in CA vs. MERALCOW
Facts:
The petitioners were residents of Pasay and Makati who
were seeking the dismantling of electricity transmission
poles and lines near their houses. The respondents to this
case are MERALCO, the corresponding barangay captains
and officials, and the Manila International Airport
Authority (MIAA).
Id.
W Harryroque.com (2010), http:/haryroque.com/2010/ll/ll/first-ever-writ-of-
kaiksan-filed-in-ca-vs-meralco-2/.
The petitioners filed their petition with the Court of

Appeals and argued that the putting up of electric poles
carrying which hosted 115-kilovolt transmission lines close
to their abodes were consented to by the barangay officials
even before having asked the residents about their opinion
on such matter. Said officials also did not study the
possible adverse effects of the putting up of the same to
their health. In order to support their petition, the
petitioners pointed to the findings of numerous scientific
studies, which tend to show that the energy conducted
through the electric lines cause hazardous effects to the
health and safety of the residents living within the vicinity.
Atty. Harry Roque who served as counsel further pointed
out that the local government officials involved did not to
comply with the requirements mandated by law in the
constructing and installing of the said poles.
Ruling:
CA dismissed the petition for writ of kalikasan. Petition

denied.

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U.P.

LAW CENTENNIAL TEXTBOOK PROJECT

Philippine Law and Ecology

ANTONIO G.M. LA VIRA

UNIVERSITY OF THE PHILIPPINES

UNIVERSITY OF THE PHILIPPINES

ANTONIO G.M. LA VISA

ISBN No. 978-971-15-0440-3

No part of this book may be reproduced in any form, or by any

Cover design by Aristotle L. Roxas

Published by U.P. College of Law

Dean Antonio G. M. La Vifia is a lawyer, thinker and teacher.

This book would not have been possible if my family- my wife

The Eagle Eyes columns reproduced in this book were a

Astrology, while myth rather than science, was nonetheless

Of course, modern science has overtaken the classical

Law and Ecology: A Compilation of Philippine Laws and International Documents

This textbook is designed as a law school textbook to guide

Antonio G.M. La Vifia

National Laws and Policies

Overview of the Natural, Socio-Economic and

Environmental Impact Assessment and

Forests and Forestland Management ......................................... 208

Wildlife and Biodiversity Conservation .................................... 273

Protected Areas and Watershed Management ......................... 300

Mineral Resources Extraction ...................................................... 365

W aste Management and Sanitation ............................................ 455

Industrial, Air and W ater Pollution ........................................... 487

Climate Change and Disaster Risk Reduction

Survey of Writs of Kalikasan ....................................................... 556

Overview of the Natural, Socio-Economic

1.1 Lan4 Sea, and the Forces of Nature

1 Mary Ann Palma, The Philippines as an Archipelagic and Maritime Nation:

the Sierra Madre Spotted Monitor (Varanus bitatawa) in 2011.

trillion (US$840 billion). Significant oil and gas reserves have

Redempto Anda, 34 Endangered Turtles Rescued in South Palawan, Inquirer. net

popnProj.asp (last visited June 2012).

2.3% until 2015. In a recent survey by Time magazine 3,

Former NEDA Director-General Cielito Habito15 charac-

The current Constitution, adopted in 1987, is the highest law

15Cielito Habito, Can we grow twice as fast?, in Inquirer.net (2010),

Table 1: Constitutional provisions relevant to

Relevant Laws and

Constitution Relevant Laws and

Felipe Ysmael, Jr. vs.

Cruz vs. NCIP, G.R.

Relevant Laws and

Legaspi vs. CSC, G.R.

1 Relevant Laws and

Relevant Laws and

Constitution Relevant Laws and

Relevant Laws and

Constitution Relevant Laws and

Relevant Laws and

Constitution Relevant Laws and

Taking into account

Section 4. The Law:

Relevant Laws and

their boundaries on Order No. 2008-24 -

Apex Mining vs.

Relevant Laws and

Patricio Cutaran et al.

ConstitutionCae C Relevant Laws and

Article XIII. Section 6. The State Law: