Territorial baselines: Be quick but careful

Territorial baselines: Be quick but careful

God must really be keeping close watch over the Philippines and the Filipinos. Territorial baselines bills are pending in Congress—consolidated and passed in the House on second reading last December. But, as revealed by Rep. Antonio Cuenco, head of the House foreign relation committee, action on the bill has been stopped because the Department of Foreign Affairs had told Congress of China’s objections to the proposed law. He also recounted that a Chinese embassy official had informed him passage of the bill would be considered an unfriendly act by the People’s Republic of China.

If the law had been enacted and not frozen for fear that China would take offense, we would have given up “an almost colossal” part of our territory. This is according to Sen. Miriam Defensor Santiago, who takes pride in being an expert in, among other things, international law, and is the Senate foreign relations committee chairwoman.

Santiago has warned that if the Philippines declares itself an archipelagic state, as the pending House bill does, the declaration would contradict the Treaty of Paris which sets the boundaries of our country. The national territory defined in the 1898 Treaty of Paris, she said, is vaster than what would end up as our territory under the archipelagic definition allowed by the UN Convention on the Law of the Sea (UNCLOS).

Under the 1898 Treaty of Paris, Spain ceded the Philippines to the United States. The Philippine baseline law – in Republic Act 3046 and RA 5446 – is based on the boundaries defined under that treaty. Senator Santiago contends that “the Treaty of Paris sets out the International Treaty Baselines of the Philippine territorial sea.” But “the bills pending in Congress will eliminate such limits and thus, the Philippines would lose its boundaries.”

Declaring the Philippines as an “archipelagic state” would be a grave error because under the UNCLOS, the Philippines would end up being entitled to only 12 nautical miles of the territorial sea. This is “an almost colossal reduction from the wider boundaries of the International Treaty Limits under the Treaty of Paris.”

As an “archipelagic state,” Santiago warned, “our zone of sovereignty would collapse. Our internal waters would become archipelagic waters where the ships of all states will enjoy the right of innocent passage. In addition, foreign states would have the right of so-called archipelagic sea lane passage. Ships of all states would have the right of passage and their aircraft would have the right of overflight.”

The Philippines must submit its UNCLOS claims before the UN’s May 2009 deadline—otherwise we lose any claim we have on the Spratlys. But Senator Santiago warns that wrong wordings in any new law could also undermine the established claim of the Philippines on Sabah.

What should the Philippines do now?

The consolidated bill passed in the House in December 2007 would redefine the baselines of the Philippine territory to include the Freedom (Kalayaan) Group and the Scarborough Shoal off Zambales, and extend its exclusive economic zone by 240 kilometers.

Sen. Santiago also warned that a Philippines that is self-declared to be an archipelagic state would suffer environmental and marine pollution from ships freely entering its archipelagic waters.

The Philippines would then have less powers to discipline foreign vessels polluting our seas than we have now as a nonarchipelagic state dealing with ships in its territory.

The Kalayaan Island Group could actually wind up being defined as another archipelago different from the main Philippine islands. Santiago said that under international law the Spratlys could be termed “other islands” (not a separate archipelago) that falls under Philippine sovereignty. Under the UNCLOS, the Philippines as an “archipelagic state” would have to be defined as having two archipelagos—the Kalayaan Group and the main Philippine group of islands.

The bills now in Congress that would include the Scarborough Shoal in Philippine territory could pose problems because international law does not recognize the drawing of archipelagic baselines as a method of claiming territorial sovereignty.”

How should we prove our claim to Scarborough Shoal then?

Use the principle of “effective occupation under international law,” the senator recommends. The military exercises, the construction and use of a lighthouse, enforcement of laws against foreign vessels and nationals that have illegally entered the area, and many other political and administrative acts are proofs that the Republic of the Philippines has been effectively exercising sovereignty over Scarborough Shoal.

Hot news

Hot news

The Sydney declaration is not a breakthrough; it is not a milestone in the long march to find what the joint statement called “an enduring global solution to climate change.” But it is a step forward.

The statement by the leaders attending the Asia-Pacific Economic Cooperation summit in Sydney, Australia, declared their resolve to lower greenhouse gas emissions. “We are committed to the global objective of stabilizing greenhouse gas concentrations in the atmosphere ... The world needs to slow, stop and then reverse the growth of global greenhouse gas emissions.”

To be sure, the Sydney Apec Leaders’ Declaration on Climate Change, Energy Security and Clean Development, to give it its complete name, speaks only of the need to work together to achieve a “long-term aspirational global emissions reduction goal,” in preparation for “an effective post-2012 international arrangement.” In other words, the consensus-driven APEC regional grouping did not call for binding commitments on the part of each member-economy to lower greenhouse gas emissions. That makes the Sydney Declaration decidedly unlike the 10-year-old Kyoto Protocol, which binds its signatories to specific reduction targets. Commitments under that controversial agreement, which took effect in 2005, end in 2012.

The principal supporters of the Sydney initiative are Australia, this year’s host of the annual summit, and the United States: staunch allies, robust business partners—and stubborn non-signatories to the Kyoto Protocol.

Essentially, what the Sydney Declaration does for the two economies is to give them the breathing room they need to flex the necessary political muscle at home. By cutting a high profile in their support for this new APEC initiative to counter global warming (the declaration was issued a day before the end of the summit, to coincide with US President George W. Bush’s accelerated schedule), both Australia and the United States can say they are doing something on the climate change front, without actually committing to specific emission reduction targets until at least 2012.

But consensus diplomacy being what it is, the Sydney Declaration also offers something for developing economies, especially China. The very concept of a long-term goal meets Chinese (as well as Canadian) preferences.

While the language of diversity in unity—”The future international climate change arrangement needs to reflect differences in economic and social conditions among economies and be consistent with our common but differentiated responsibilities and respective capabilities”—can be said to favor both developed and developing economies, the latter found the statement’s unequivocal commitment to the United Nations Framework Convention on Climate Change to their advantage.

“That’s fine,” President Macapagal-Arroyo told reporters the night the statement was released, “because at least they all recognized that the UN is the real forum for decision-making.”

“The important thing is not to undermine the UN,” she added.

As we said, a little something for everyone. But because consensus groupings like APEC and the Association of Southeast Asian Nations operate on the fundamental principle of precedents, the Sydney Declaration can be considered a real step forward. Even without formal formulas about binding goals, the joint statement already commits all APEC members to the general idea of emission reduction targets for both developed and developing economies by the next decade.

The collective decision to pursue “an effective post-2012 international arrangement,” therefore, can be understood to mean some progress forward.

One small step at a time

One small step at a time

A non-binding agreement is better than no agreement at all, and is easier to adopt by leaders of 21 politically diverse countries at different stages of economic development. The Sydney Declaration of Climate Change, Energy Security and Clean Development was signed last week in the Australian city by leaders of the Asia- Pacific Economic Cooperation forum. Together, APEC member countries consume 60 percent of the world’s energy resources and account for roughly the same percentage of greenhouse gas emissions.

Among other things, the Sydney Declaration promises to increase forest cover in the Pacific Rim by at least 20 million hectares by 2020. By 2030, APEC leaders also hope to cut by one-fourth the amount of energy needed per unit of economic growth – called energy intensity.

Rock stars and the movie industry are promoting public awareness of climate change, and the problem has become an election issue in certain countries. Freakish, destructive weather is forcing people around the world to confront the consequences of climate change. There is greater pressure on governments to deal with global warming. But the task is complicated by many factors that are not to the liking of environmental advocates.

Developing countries such as China, for example, cannot easily wean themselves away from dirty forms of fuel such as coal that abound locally and greatly reduce the cost of energy needed for industrial growth. In tropical regions, governments are realizing that saving rainforests becomes easier through sustainable agroforestry, where communities dependent on forest products become stakeholders, rather than through a total ban on logging that many developing countries find impossible to enforce. Rich countries themselves cannot easily kick their gas-guzzling habits; the United States is one of the world’s largest consumers of fossil fuels.

Yet every country must do its part, even if it’s just one small step at a time. Rising ocean temperatures are endangering the world’s marine resources. Melting polar ice caps are raising sea levels, which are threatening coastal areas. Weather patterns are changing, bringing devastating droughts, floods and hurricanes even off-season. Though the APEC declaration is non-binding, the forum members will increasingly find that they have no choice but to comply with their commitments.

Dirty word

Dirty word

“Logger” is a dirty word in this neck of the woods. Not us, snaps San Jose Timber Corp. (SJTC). Sen. Juan Ponce Enrile’s firm logs within a 95,770-hectare area that straddles protected zones of the country’s last old-growth forest in Samar Island. SJTC claims it works by “sustainable management.”

Bought in 1977 by then martial-law Defense Minister Enrile, SJTC got the Department of Environment and Natural Resources to scrub a logging moratorium. This feat affects what the World Wildlife Fund (WWF) lists as “one of the top 200 endangered spaces on the [planet].”

Catholic bishops, green groups and international foresters fret over threats to one of the world’s richest biodiversity pools. Exactly 406 of Samar’s more than 2,400 species of flowers bloom nowhere else. And it has 39 species of mammals and 197 birds. Many are endangered. “This genetic pool has incredible value,” marvels Food and Agriculture Organization forester Patrick Durst.

To protect this critical resource, the UN Development Program, the Global Environment Facility and the government launched the Samar Island Natural Park. But government often snitches with the left hand what it hands with its right. Here, the Department of Environment and Natural Resources (DENR) spiked the log ban -- and stretched SJTC’s license by 16 years and five months. Environment and Natural Resources Secretary Mike Defensor’s Aug. 16, 2005 order tacked this rider for SJTC: “extension of period of said TLA equivalent to the time lapsed from 31 May 1989 until promulgation of this order.”

Extension constituted “restitution.” “Onli in da Pilipins” [Only in the Philippines], retorted the Samar Island Biodiversity Foundation in a letter to senators, church leaders and NGOs. “Extension of a TLA as ‘restitution’ never happened in the Philippines before,” wrote its president, Agustin Docena.

“Restitution,” the dictionary says, “is making good for injury done.” In a country where crime pays, the idea of making good for harm inflicted startles many. But the concept of reparation goes way back.

Some dub it the “Zacchaeus precedent.” In Luke’s account, the tax collector Zacchaeus pledged before the Master: “Half of my goods, I give to the poor. And if I’ve cheated anyone, I pay him back four times as much.” This fourfold restitution amplified the 7th Commandment, “Thou shall not steal.”

In an Orwellian country, like the Philippines, some people are more equal than others. A moneybag aristocracy dominates here. By manipulating government levers, pecuniary aristocrats grab all resources within reach. The Ten Commandments are watered down to the “Ten Suggestions.”

The result is a moral vacuum. It shuts out “restitution” -- except where the elite cash in. The powerful monopolize the Zacchaeus precedent but deny it to the weak. Eduardo Cojuangco Jr. and Ferdinand Marcos’ cronies couldn’t be bothered with “restitution” for wringing, under martial law, billions in levy from helpless coconut farmers.

Defensor’s order, in effect, says that SJTC has been prejudiced and is entitled to “restitution” -- by extension of its license. Who inflicted the harm? The Catholic bishops of Calbayog, Catarman and Borongan who supported the moratorium? The DENR?

Who calibrates the value of “restitution”? SJTC?

And how? In open hearings? Or was all this a secret, as Oliver Franks said, “in the Oxford sense—you may tell it only to one person at a time.”

Fairness is often the first victim in smoke-filled backroom negotiations. And the Catholic bishops’ pastoral letter opposing SJTC’s claim to “prior rights” makes the same point. This “legal assertion… does not reflect true justice or morality… The people of Samar have more prior rights... Justice dictates that the natural wealth of Samar Island benefit Samar’s poor, not end up (with) the already wealthy.”

Scientists have estimated losses if erosion of Samar’s biodiversity continues. “More than $40 billion in just 25 years,” says Marcelino Dalmacio, who led the UN’s Samar Biodiversity Project. “That’s more than the projected value of bauxite minerals. And it’s definitely greater than timber.”

Water accounts for more than 80 percent of the bill, Dalmacio adds. “Water will suffer consequences of logging and mining, particularly in karst (limestone) areas.” Underground cave systems in the country’s largest karst region would crumble from logging trucks.

Beyond price tags is the “killing curve.” Plant and animal genes form life’s building blocks. They spin off into diverse products, from high-yielding seeds to anti-cancer drugs. Only 15 percent have been studied. Of today’s 300,000 plants, only 200 or so appear on our dinner tables. Three crops -- rice, maize and wheat -- provide most of energy.

Yet, Oxford University’s Norman Myers estimates that some 30,000 species slip into extinction every year, compared with “two or three lost every five years or so before man appeared.” This “genetic library” took eons to evolve. “Its destruction would wreck the very systems that enable us to feed the world,” warns Thai Princess Maha Chakri Sirindhorn, a recipient of the Ramon Magsaysay Award. “It would foreclose options for generations coming after us.”

Biodiversity loss is irreversible. There is no recall mechanism from obliteration. Who’ll make restitution for such damage? Forest cover here stood at 57 percent in 1934. It’s been whittled down to 18 percent today -- and is still dropping.

The Samar Island Biodiversity Foundation prodded the Senate to consider the “restitution” flap when selecting Commission on Appointments representatives. The foundation asks: Did Defensor swap extension-plus-restitution for Enrile’s vote in confirming his appointment?

Were you born yesterday?

Uncontrolled development

Uncontrolled development

Owners of business establishments in Boracay have welcomed a moratorium on new construction on the world-renowned island resort. Now foreign investors are said to be setting their sights on an island in Romblon for tourism development similar to Boracay. Elsewhere in the Philippines, new tourist destinations are also being developed.

The story of Boracay should provide valuable lessons in uncontrolled development. The island resort grew into a top tourist draw with no planning and little regulation, and it shows. With Boracay’s forest cover depleted and resorts, restaurants and nightspots jumbled together cheek by jowl on the island, authorities are scrambling to stop overdevelopment, which is straining the island’s resources and posing a threat to the environment.

It’s not just Boracay that can use some regulation. Even the highlands overlooking Taal volcano are becoming overdeveloped, depleting the vegetable and flower farms that have long been part of the area’s charm. Authorities must bear these lessons in mind as new tourist destinations are developed. Among the emerging tourist spots are the areas around the Albay Gulf where visitors can watch whale sharks and dolphins, and surfing areas in the coastal regions of La Union and Ilocos.

The irony is that amid overdevelopment, top tourist destinations lack facilities and skilled workers to provide quality services to visitors. Both the national and local governments are unable to provide the most basic of visitors’ needs: public toilet facilities that are spacious, clean and with piped water and toilet paper. Many of the nation’s tour guides can also use better training.

Older tourist destinations, meanwhile, are being neglected. The rice terraces of Banaue continue to deteriorate. For several decades there has been little improvement in access to the site either by land or by air. The country’s tourism infrastructure is inadequate not just in the Cordilleras but also in many other areas, except in destinations such as Boracay where the private sector has taken the lead in development. The danger in this case, as we have seen, is overdevelopment.

Not just global warming

Not just global warming

Storm “Chedeng” is expected to enter the country today, bringing much-needed rain, according to weather forecasters. The question is whether the rain will fall over areas now stricken by drought in Central Luzon and the northern regions. Yesterday the governor of Cagayan placed the province under a state of calamity. This means the entire Cagayan Valley, which accounts for 40 percent of the country’s rice production, is now under a calamity state because of the drought.

Blame global warming; weather around the planet has been bizarre this year. Farmers in this tropical archipelago worry more often about torrential rains and floods than long dry spells. But blame poor agricultural infrastructure as well. Droughts are not rare even in this country that serves as the welcome mat for typhoons hitting Southeast Asia. This is supposed to be the wet season, and southern Luzon has been experiencing downpours almost daily. But the rainfall cannot be contained in catchments and diverted to areas where water is needed. Another problem: irrigation systems in the farming areas of Luzon are inadequate and ill-suited for emergency situations.

Agriculture Secretary Arthur Yap said the National Irrigation Administration gets an annual budget of P200 million – an amount that is insufficient for the repair and maintenance of irrigation facilities nationwide. The budget has been increased, but by the time the needed funding is released, the weather is likely to have changed and there would be other agricultural priorities. And by the time the results of additional funds are felt, the drought would have done its worst.

It’s too late for any infusion of irrigation funds to save this season’s crops. But after seeing the consequences of the ongoing drought, the government should learn enough to be prepared for the next dry spell. World weather patterns are changing dramatically, and the country is likely to see more devastating droughts in the coming years. The government will have to invest in improved water resource management and irrigation facilities if it wants to prevent more agricultural disasters.

Impossible demands

Impossible demands

We will let on government planners on a private sector secret which actually has long been known to practically all corporate planners. For almost 20 years now, many companies routinely input the high likelihood of a drought every five years and adjusted their corporate plans accordingly.

This nugget of defensive strategy we learned from the corporate planner of one of the biggest conglomerates in its time, which was severely weakened by the money market collapse in 1980-1981 and finally buried when its principal flew the coop after the ouster of Ferdinand Marcos. The planner learned to take the vagaries of the weather seriously when he started as an analyst of the US agriculture department, working out from a desk at the US Embassy. For all we know, he is still using the same, if improved, forecasting model at a commercial bank where he is now serving as executive vice president.

His point was that invoking force majeure was rather silly because information about the cyclical El Niño phenomenon was readily available (global warming was not yet a familiar term in those days). And invoking force majeure won’t cut ice with the board of directors which he was reporting to. So his group’s investment, trading and lending programs were designed to minimize exposure on industries dependent on good weather, meaning, principally agricultural-related companies, whenever he saw signs of a coming dry spell.

How good is the planner? Well, let’s just say he is treated as a star every time the Philippine Economic Society holds its annual meeting.

So why doesn’t the government do the same, pro-actively addressing the threat of a long dry spell like what the country is experiencing now?

Wrong question. Most agencies, especially government-owned corporations and financial institutions, do plan ahead. It’s just that politicians tapped to head the corporations and to sit on the boards have priorities set by their masters.

Let’s take the National Power Corp., the current whipping boy for the rising power rates due to a) idled hydroelectric plants and b) more expensive fuel. It is not publicly known that Napocor is a subscriber to a very expensive weather forecasting service that is acknowledged as being better than the official weather bureau. The Napocor should have known the hydros were about to run out of water. It should have been prepared to harness its other plants, mostly thermal.

The reality is that the Napocor has not stocked up on coal, for example, in anticipation of greater reliance on thermal plants. The reason is simple. The pressure is on Napocor to raise its profits while ensuring stable rates. Remember the to-do about the alleged price-fixing in the wholesale market? The Napocor told the trading groups at the wholesale market that they should not sell output at giveaway rates. For its trouble, Napocor was cited by the Energy Regulatory Commission for price-fixing.

This week, wholesale spot prices peaked at over P52 per kilowatt-hour, more than 10 times the recent average. We expect to see stepped up calls for heads to roll at the Napocor. As if cutting off heads will lead to an additional megawatt of power to the grid.

And so the finger-pointing goes on, with every expendable executive adjudged guilty to absolve the pols who demand adequate power supply at a cheap price on rising production cost.

They might as well demand the squaring of the circle. But that’s politicians for you.

Textbooks that miseducate

Textbooks that miseducate

ONE of the urgent problems that education troubleshooter Romulo Neri may look into is the big number of textbooks that miseducate Filipinos because they are shot through with grammatical and factual errors.

This anomaly is public knowledge and has existed for decades. Efforts to correct the mistakes have generally been unsuccessful. The books continue to be printed, reprinted, sold and taught at elementary and secondary public schools. According to the experts, solecisms in language and in fact also crowd many college textbooks.

Two or three years ago, the Department of Education commissioned a study to look into the problem. The department asked the National Historical Institute, the University of the Philippines and other offices to make an assessment of the trouble and to offer solutions. We have not heard from DepEd regarding its study.

On history, we have had the investigations of Dr. Augusto de Viana of the historical institute, the essays of the historian Ambeth Ocampo and books by Benito Legarda Jr. and others to show the historical lies that popular myth and schools have helped perpetuate.

On language and logic, we have heard from Antonio Calipjo Go, academic supervisor at the Marian School in Quezon City, (read his ad in The Times and other papers), our language policeman Jose A. Carillo, parents, scholars and journalists who have heard complaints about these heresies or have read their contents for verification.

A host of reasons explains why substandard books have entered the public school: a reported book cartel among authors, middlemen and publishers, poor evaluation system, the reported influence of supervisors on the choice of reading materials, poor oversight and monitoring, authors writing out of their depth. The collective failure to write and speak English correctly has victimized students.

The UNESCO National Commission of the Philippines and the Department of Education are working on an aspect of the problem but we wish they could do no more.

While admitting the abundance of flawed textbooks in public schools, Dr. Jaime Galvez Tan, former Health secretary and project leader, said that their study is focused on books dealing with social studies and health education, and on the production of “resource books.”

At a news briefing, Galvez-Tan said an earlier study by the UN Educational, Scientific and Cultural Organization confirmed the poor quality of these textbooks. The researchers gauged the accuracy, balance, readability, consistency and organization of the materials to arrive at their conclusions.

He singled out a Grade 5 textbook on health and science for having “condemnable” errors. Errors filled every page, he moaned.

His approach, however, to the problem is to publish a “resource book” for every subject “so that teachers can correct what they see wrong in the previous textbooks.”

What does it mean? In previous press releases on the subject of “resource books,” DepEd said such a guidebook would simply take note of a published error and correct the mistake. It’s like adding an “erratum” page to a book.

Not enough. What the Department of Education should do is get rid of all badly written textbooks and replace them with well-written ones.

Education Secretary Jesli Lapus should also create a national commission to deal with the problem, hire experts, define their work and give them a deadline. If he doesn’t do it, Mr. Neri should look into the matter.

Here are a few gems culled by Mr. Go: 1. “Jose Garcia Villa wrote the story “’Woman With Two Navels.’” 2. “He became the primetaker of his family’s farmland.” 3, “’Here’s for you!’” the guard said while hitting Basilio.”

Here’s for you, you poor student!

How to save water

HERE, according to Maynilad Water Services, are some practical tips on saving water:

Report leaks, busted pipes and hydrants to the government or to your water provider.

Make sure all taps are closed.

Have leaks repaired promptly.

Recycle water. Use rinse water from the laundry or kitchen for flushing the toilet, cleaning the car or watering plants.

When washing clothes, don’t let the basin overflow under a running tap.

When using the washing machine, wash with a full load every other day.

Use only the right amount of water to cook food or wash dishes.

Use a basin or fill up the sink halfway when soaking, soaping or rinsing dishes or cleaning vegetables. Don’t use running water for this purpose.
Don’t water your plants too often.

Never soak your lawn with water.
When washing your car, use a pail, not a water hose; a cotton rag, not a sponge.
Don’t hose down your driveway. Use a water pail and broom.
Avoid unnecessary flushing.

Turn the tap off when washing, shaving or brushing your teeth.
Using a timba and tabo is preferable to using the shower.
Don’t stay under the shower longer than necessary.
Place a heavy brick in the water tank to reduce the volume of water.
And our small contribution: Shower with your wife or girlfriend.

Drought as nature’s revenge

Drought as nature’s revenge

Suddenly, climate change is no longer a lofty scientific concept. It has become a reality and we are suffering from its effects.

Last week the government alerted the public to the possibility of a drought parching Luzon unless long-overdue rains started falling within the next few days. The concern was raised after unscheduled power outages blacked out large sections of Metro Manila and neighboring provinces. The reason: a number of hydroelectric plants had stopped running because there was not enough water to drive their turbines. The dams supplying water to the plants were drying up, not having been replenished because of below-average rainfall. The authorities had to admit that the afternoon showers offering some relief to the metropolis were induced by cloud seeding, and that power and electricity may have to be rationed.

The consequences of a severe water shortage go beyond rotating blackouts. An extended dry spell could play havoc on Luzon’s rice and corn harvest and drive up grain prices. Agriculture Secretary Arthur Yap was quick to explain that grain prices would remain stable for the rest of the year. However, the secretary added rather ominously, a prolonged dry season could impact on next year’s crop.

What looms even darker on the horizon is the fact that man, not nature, is largely responsible for the unusual and potentially damaging weather gripping the country.

For years environmental scientists had warned that pollution and forest denudation were raising temperatures all over the world. Unless drastic steps were taken soon, Earth would get warmer, triggering such catastrophic events as crop failures and even the extinction of many animal and plant species.

Global warming has since been recognized as a menace that requires international action. In the Philippines, it took longer to sink in because its effects had not been readily apparent or dramatic. The farmers attributed the lateness of the rains or the viciousness of supertyphoons to the fickleness of nature. The smog that enveloped the city was nothing more than a minor inconvenience for commuters. The laundrywoman saw nothing wrong with leaving the tap running while the water overflowed from washbasin.

It’s time we recognize that we are responsible for what is happening to our climate. It’s time we do something about the weather, not just talk about it.

A study published last week by a British scientific journal confirms that global warming is already influencing world’s rainfall patterns. Last week Europe sweltered as a heat wave swept across the continent, while across the English Channel, record floods swamped parts of Britain.

Closer to home, a senior climate scientist at the International Rice Research Institute in Los Baños said it would be harder for the Philippines to cope with climate change because it has different climatic zones that need a specific response strategy.

“Regions of the Philippines differ in terms of land use practices and landscape characteristics, so they will be affected to varying degrees by climate change,” the scientist said.

The government must look at the aberrant weather as a consequence of global warming and not just a seasonal phenomenon, and adjust its response accordingly.

Atienza not fit to head DENR

Atienza not fit to head DENR

I would like to add my voice of dismay to those of the millions of environmentalists in this country on the appointment of former Manila mayor Lito Atienza as secretary of the Department of Environment and Natural Resources (DENR). This appointment is obviously a political accommodation for yet another of Gloria Macapagal-Arroyo’s loyal-but-now-unemployed supporters. And it is unfortunate that the DENR should be made to serve as a “catch-basin” for this kind of job-seekers. The DENR is not a minor and negligible agency.

Valid and credible qualifications, not to mention a solid track record in environmental protection, have been completely disregarded in this appointment. Atienza hardly has the track record in caring for and protecting the environment when he had the office and the power to do so. If he did not care for Manila’s parks, could he be trusted to oversee the country’s natural resources?

We urge this government to treat the environment with utmost respect by appointing only qualified people to oversee the DENR.

MA. LUISA R. DE LEON-BOLINAO, Ph.D., associate professor 3, History Department, College of Social Sciences and Philosophy, University of the Philippines, Diliman, Quezon City

The "greening" of Atienza

The "greening" of Atienza

A US president once said that his appointments always created one grateful wretch and a hundred enemies. It’s no surprise then that GMA’s appointments of Angelo Reyes to DoE and of Atienza to DENR have their critics and detractors. You just can’t please everybody but if you try to do so, you won’t please anyone, so the saying goes.

But appointees also have their defenders. As in the case of Reyes, you have Executive Secretary Eduardo Ermita and Press Secretary Ignacio Bunye Jr. attesting to his fitness for the job; they also included Atienza, who is also fortunate in having a defender in Mike Defensor, DENR secretary before he became GMA’s chief of staff.

To the objection of some greenies to Atienza’s fitness for the job, Defensor pointed out that the former’s record on the environment "speaks for itself."

When Atienza was vice mayor of Manila, he presided over the passage of Ordinance 7777, which protected Manila Bay by banning any form of reclamation between Pasay and Caloocan cities.

"This allowed the people free access to the bay to enjoy one of the world’s most beautiful sunsets," said Defensor. He also commended Mayor Atienza for the law removing the oil depot from Pandacan, a move that was challenged but upheld by the Supreme Court. With the dismantling of 28 tanks in the area, a green buffer zone separated the oil storage from the community.

Defensor also said that Atienza solved the garbage problem that hounded Manila for over five decades, a citation that Manilans are free to verify for themselves. Moreover, the also-ran senator (who by the way conceded early amidst the contretemps of the election count), connected Atienza’s pro-life advocacy to his "championship" of the environment.

Calling from the US, Atienza pledged his commitment to the President’s program by "upholding the strictest environmental regulatory standards, pushing for suitable and sustainable use of the country’s natural resources for the benefit of farmers, fishermen, and other marginalized groups."

That, after all, is what the law says. Atienza doesn’t have to reinvent the wheel; he just needs to push it.

Framework to strengthening environmental adjudication in the Philippines

Framework to strengthening environmental adjudication in the Philippines

THE Philippines is known for having among the toughest and most progressive environmental laws in the world. Our Constitution guarantees the right of the people to a healthy environment, which the Supreme Court has declared, in the leading case of Oposa v. Factoran, as legally demandable and enforceable. Yet mere recognition of the right is not enough. The government has to protect the exercise of that right. The role of the Court is to ensure that laws, actions of government agents as well as actions of fellow citizens, do not trample on that right. However, the Court will only have this opportunity when appropriate cases are brought before it.

Many concerned groups have voiced their suggestions to improve access to environmental justice. The Philippine Judicial Academy and its partners (the USAID, UNDP, and many Philippine civil society environmental and alternative law organizations) have taken great strides to advance the cause of the environment within the judiciary, especially through judicial training.

The framework I am sharing today seeks to synthesize the discussions and present options for addressing the most pressing issues. Our overall strategy is to increase the relevance of the courts by making the judiciary better prepared in handling environmental cases. Indeed the goals of a framework for strengthening environmental adjudication in the Philippines are improved efficiency, integration of jurisdiction (where allowed by law), and greater access to justice especially by the poor. These goals are particularly important in taking steps to strengthen green benches.

At this point, allow me to acknowledge that the preparation of the framework was done in partnership with the Philippine Judicial Academy (PHILJA) and supported by the United States Agency for International Development (USAID) through the Asian Environmental Compliance and Enforcement Network (AECEN), and by the United Nations Development Program (UNDP) through a grant provided to the Haribon Foundation.

Background on the framework

To situate better this framework for strengthening environmental adjudication in the Philippines, some background on our environmental and judicial systems and how they interact with each other is probably helpful.

The Philippines is a republican state with a presidential form of government. We have three co-equal branches of government – an executive branch headed by the President, the legislature which is bicameral with a Senate and a House of Representatives, and an independent judiciary. The powers of these branches of government are well-defined in the 1987 Philippine Constitution. The legislature enacts laws, the executive branch implements them, and the Judiciary adjudicates when there are controversies involving the other branches or where the rights of citizens are affected. Aside from laws passed by the legislature, the judiciary also interprets the Constitution and has the power of judicial review over acts of the different branches that raise questions of constitutional validity. The Supreme Court and the lower courts have these powers apportioned to them by the Constitution and by legislative act. Finally, the Supreme Court as the highest court of the land has also been explicitly given the constitutional power to administer and manage the courts and thus has authority to organize the courts, issue rules and regulations, and perform other acts to ensure effective and efficient access to justice.

Let me go now to the administrative and legal issues that might have to be addressed to strengthen our system of environmental adjudication.

Institutional and administrative issues

Let us begin first with the recommendation of establishing green benches. Already, we have specially designated courts (e.g. family courts) that hear certain types of cases, but these are additional tasks. These courts still hear regular cases in addition to all the special cases channeled to it. In the Philippines, we already have green benches although their jurisdiction is limited to forestry courts. As to other strengthening this, the following four options could be explored:

First, strengthen the current system of specially designated forestry courts by providing Judges assigned to these courts additional training, as well as technical and other resources that increase capacity;

Second, expand jurisdiction of current designated courts to cover over all environmental cases (except those under quasi-judicial bodies such as the Pollution Adjudication and Mining Adjudication Boards) and located in accessible areas (where cases are expected to be numerous);

Third, establish special courts that are strictly for environmental cases; and

Fourth, establish green benches that focus not only on the Judges but the support system needed for environmental cases, with particular attention given to developing technical expertise not only among Judges but other officers of the court.

All four options can be acted upon by the Supreme Court but the first and the fourth options would have to be with PHILJA and other partners while the third option can also be acted on by Congress.

Environmental cases can arise in any part of the country, perhaps certain issues more than the others, depending on the type of activities in the area (for example, in big cities, you will expect more pollution cases than forestry). The designation of courts in identified priority areas is only a temporary measure while the rest of the judiciary undergoes orientation and training. The goal is for all courts to be able to handle environmental cases. Regardless of whether or not we ultimately decide to establish exclusive or special courts, we need to reorient the thinking of judges when it comes to handling environmental cases. We have started by identifying the courts where the cases are most likely to occur and initiated the training of judges in these courts. Through PHILJA we are moving towards training more judges, and perhaps eventually making environmental law part of the general training curriculum of judges.

Capacity building for judges

PHILJA conducted several training on environmental law that benefited some 400 judges. PHILJA has also prepared training modules on environmental law, including materials on specific topics (climate change, wildlife). However, these are all basic trainings. Data from PHILJA’s training partner, Haribon Foundation, shows that there were instances where the same judge had attended more than 2 or more basic environmental law trainings. PHILJA should track who has been trained and see to it they get advanced training depending on the particular need of the jurisdictional area for knowledge about the most prevalent cases filed in the area.

Legal Issues around environmental cases

We will now look at specific legal issues around environmental cases. Several suggestions have been made in order to address the unique challenges faced by parties in an environmental case. In various consultative forums discussing environmental adjudication, the issues of standing to sue and class suits are always raised. Environmental law advocates often suggest the Court relax the rules on standing to sue and class actions in order to make it easier for injured parties to file a case. Other suggestions include amending the rules on accrual of causes of action and burden of evidence to allow plaintiffs to overcome the technical barriers to filing environmental cases. Still other suggestions deal with improving court rules in the custody and appreciation of bulky and perishable evidence. Let us clarify these issues:

Standing to sue

The case of Oposa is famously quoted for its pronouncement on intergenerational responsibility. The Court said:

Petitioners minors assert that they represent their generation 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.

Standing to sue has always been considered a mere procedural matter that can be set aside. The pronouncement in Oposa has been reiterated in the recent case of Henares v. CA, where we recognized plaintiffs’ (who were ordinary citizens and including minors) right to sue the government to compel the use of compressed natural gas by public utility vehicles. We said:

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.

However, having standing to sue does not automatically mean that the petitioners have a cause of action. The question of standing involves who the proper parties are to the case. On the other hand, the issue on cause of action requires not only that the plaintiff is the proper party (has a right that has been or may be violated) but also that the defendant has a correlative duty to protect or respect such right. Our Rules of Court defines a cause of action as "the act or omission by which a party violates a right of another."

In Oposa, and in the case of Cruz, et al. v. Secretary of Environment and Natural Resources, et al., where the constitutionality of the Indigenous People’s Rights Act (IPRA) was at issue, we declared that the citizen-plaintiffs had standing because they possessed the right that could be violated, and the government had the correlative duty to protect such right. On the other hand, in Henares, while the Court recognized that the plaintiffs had standing, it also found that there was no provision in the Clean Air Act that required the government agency to compel public utility vehicles to use CNG. The Court ruled that the petitioners had no cause of action.

When public interest law groups ask that the rules on standing should be relaxed, what they are really asking is to be allowed to sue on behalf of the proper (injured) parties. Is present jurisprudence relaxed enough to allow public interest groups to stand as plaintiffs? Our jurisprudence is rich in cases where ordinary citizens file suits as taxpayers. In Kilosbayan v. Morato we said that the Court has in the past accorded standing to taxpayers and concerned citizens in cases involving "paramount public interest." Taxpayers, voters, concerned citizens and legislators have indeed been allowed to sue but only in cases involving constitutional issues and under certain conditions. These conditions are well-established under our case law. Public interest groups must meet the conditions for taxpayer’s suits in order to have standing to sue on their own.

To summarize, we have three options here, all of which the Supreme Court can take action on:

First, completely liberalize rules on standing for environmental cases?

Second, selective liberalization of rules, e.g., waiving standing in cases of transcendental importance?

Last, adopt rule that environmental cases are imbued with public interest, where rules on standing and cause of action may be interpreted liberally?

Class Suits

A class suit is one where "the subject matter of the controversy is one of common or general interest to many persons so numerous that it is impracticable to join all as parties, a number of them which the court finds to be sufficiently numerous and representative as to fully protect the interests of all concerned may sue or defend for the benefit of all. Any party in interest shall have the right to intervene to protect his individual interest."

The main advantage of a class suit is that it brings together small claims that are impractical or unlikely to be litigated separately. By aggregating small claims, class actions efficiently and effectively spreads the cost of litigation among many claimants. Because there are numerous members of a class, each member contributes only a small amount that adds up to cover litigation costs and pay for good lawyers. The large amount of the aggregate claim can attract good legal talents who are willing to work on contingency basis. Because of the large number of people involved, class suits also strengthen the negotiating power of small claimants against big defendants.

Just because large numbers of people are affected by an environmental violation does not automatically mean that the court has to certify the case as a class suit. The specific requirements must be met, namely: 1) Numerosity – the class must be so numerous that joinder of all parties is impracticable; 2) Commonality – the questions of fact or law are common to the class; 3) Typicality – the class representatives who file the suit must be typical of those of the class members; and 4) Adequacy – the class representatives must be able to represent the class adequately.

It is not hard to imagine that environmental cases would involve numerous plaintiffs. The question is if all of them have common interests in the subject. Class suits have not been common in our jurisdiction perhaps because of the strictness in interpretation of the Rule. Indeed, it appears that our strict interpretation of class suits could prevent the filing of environmental class actions to claim losses or damages. Perhaps there is room to reconsider. However, the right case has not come to the attention of the Court.

It should be noted that taxpayers and citizen suits are class suits, because plaintiffs claim to represent the rest of the citizens or taxpayers not named in the case. The difference with damage class suits is that, the relief sought in taxpayers suits (typically, mandamus or prohibition) automatically benefit all and equally, without having the problem of apportioning any proceeds. Otherwise, we face the problem of having to decide what each plaintiff is entitled to, and requiring each to prove her claim.

In summary, these are the options:

First, the Supreme Court might want to liberalize rules on class suits for environmental cases;

Second, both the Court and Congress could institutionalize the concept of citizen suits for environmental cases; and

Finally, Congress could examine and adopt changes to the principles underlying mass tort actions, especially as the only viable means for aggregating small claims in complex, expensive, technical cases.

Accrual of Cause of Action

The interval between the violative or injurious act and the manifestation of injury can take years. This is of critical concern because actions must be instituted within limited time periods. The statute of limitation for tort is 4 years from occurrence of the wrongful act. The primary and secondary effect of environmentally damaging acts can take longer than this period. Environmental advocates propose to change the reckoning of prescriptive period from the date of discovery. It should be noted that the Supreme Court has also held that when considerations of substantial justice and equity come in, it is better to resolve the issue on the basis of merits of the case, instead of applying the rule on prescription.

Application of Article 1150 of the Civil Code may be resorted to. Said article provides that "the time of prescription for all kinds of action, when there is no special provision which ordains otherwise, shall be counted from the day they may be brought." This could be interpreted to mean the time when the impact of the injurious act became manifest or was discovered.

For this issue, the options are: for the Supreme Court to adopt appropriate discovery rules or for Congress to adopt special rules on prescription for environmental cases.

Burden of evidence on causation and damages

The burden of proving facts and causation can be heavy and costly. In several instances, the law creates presumptions that shift the burden of presenting evidence. In Sec. 88 of the Philippine Fisheries Code, the law creates a prima facie case of fishing with the use of explosives in case of possession of explosives which was upheld in People v. Vergara, 270 SCRA 624 (1997).

However, the Court cannot shift the burden of evidence through the Rules. There is a danger that it will fly in the face of the Constitutional right to be presumed innocent. While burden of proof remains with plaintiff, the Supreme Court could identify how certain disputable presumptions can be established (by law) to shift the burden of presenting evidence on the defendant.

Difficulties in proving causation and liability can be addressed through adopting strict liability rules, which we already have in transportation and product liability. But this is a matter that should be addressed to the legislature, and not the judiciary.

Custody of bulky and perishable evidence

Public interest law groups point to practical problems in dealing with evidence in court. In many cases, the evidence (logs, fish, wildlife) can be bulky, highly perishable, dangerous or needs care). The general rules on the handling and custody of evidence, while the case is pending, are inadequate to address the problems encountered in the field.

In illegal fishing cases, as part of acquiring jurisdiction, trial courts order the surrender of materials and paraphernalia involved in the case – this can include fishing nets that weigh several tons and boats. The court is faced with the problem of storage and paying for maintenance costs, including wharfage fees. The court is also faced with the challenge of storing the fish allegedly caught illegally. It is the same situation with logging – storage is a problem, and the materials deteriorate quickly if not cared properly. At the end of trial (which can take years) the materials are useless – either to the accused, when acquitted, or to the government, in case of forfeiture.

Practitioners have suggested to the Court the promulgation of rules to allow the sale or disposition of bulky or perishable evidence to preserve their value. The proceeds of the sale is then deposited with the court to await the outcome of the case. Photographs, samples and inventory records can then be used for presentation in court in place of the actual bulky or perishable objects.

In sum, the options on this issue are:

Allow selling (where appropriate) of bulky or perishable goods to preserve their value

Convert actual bulky or perishable evidence to other acceptable forms such as photographs, representative samples, etc.

Use of modes of discovery to establish early the facts related to the bulky/perishable object evidence

The Supreme Court can take action on these options.

Remedies

To deal with remedies, let us look at three issues: (1) appropriate penalties; (2) judicial review of executive agency; and (3) alternative modes of dispute resolution. Careful study of these issues is needed.

Creative penology

Penalties should not only be imposed as punishment and to deter further repetition of the offense, but also to educate the violator on why the action is considered wrong or illegal. Courts can help reform environmental offenders by imposing creative conditions that educate the offender. In 2003, the Supreme Court issued Administrative Circular 17-2003 that required the planting of trees as condition for probation. The imposition of conditions for community service can include other activities that can expose the offender to the value of the natural resources that he has destroyed. Trial courts in Cebu, for instance, make it a condition in fishery crimes, that the violator serve as guardian of the marine sanctuary. In such instances, the violator gets to learn about the value of the marine ecosystem to his livelihood.

As a rule, for appropriate penalties to be imposed, congressional action is needed. Some examples of what could be done are:

Offenders to render community service by attending environmental seminars and participating in community environmental protection work.

Impose still civil and criminal penalties result that can result in deterrence.

Judicial review

The appellate courts also play an important role in the review of cases. There are two types of reviews: appeals from lower court decisions and judicial review of cases heard by quasi-judicial bodies. For appeals, the appellate courts should be equipped with some of the technical skills to appreciate the issues in environmental cases. For judicial review, the appellate courts should also develop sensitivity to executive decisions and establish a clear standard for review. The Supreme Court has been consistent in upholding the powers of environmental agencies to protect the environment. In the case of Sta. Ines Melale Forest Products Corp. v. Executive Secretary, we said:

Findings of fact of quasi-judicial bodies which have acquired expertise because their jurisdiction is confined to specific matters, are accorded not only with respect but even finality if they are supported by substantial evidence, even if such evidence might not be overwhelming or preponderant. Courts will not interfere in matters which are addressed to the sound discretion of government agencies entrusted with the regulation of activities coming under the special technical knowledge and training of such agency. Indeed, issues involving basically technical matters deserve to be disentangled from undue interference from courts.

The Constitution has greatly strengthened the power of judicial review. The second paragraph of section 1, Article VIII of the Constitution states that: "Judicial power includes 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." But such power does not give the court the license to supplant its own decision on what is best left to the expertise of the executive agencies.

Alternative mechanism for resolving environmental disputes

Oposa is famous for the Court’s pronouncement on intergenerational responsibility. However, it is also criticized for not having been followed through with actions that actually benefited the environment. If we recall, the ruling in Oposa was to remand the case to the trial court for further proceedings and implead the timber license holders. The logical continuation of the case would have been to prove that the harvesting of forest products by timber license holders was not sustainable and thus impaired the rights of future generations from enjoying the value of our forests. But who is to decide that question – the court or the environmental agency? The filing of the case had achieved its goal of forcing the environmental agency to reexamine its policy on exploitation of forest resources, under the watchful eyes of the court. But to decide whether the subsequent actions of the environmental agency are sufficient for sustainable resource management would have been difficult for the court.

A device known as a "consent decree" is used in the United States [notably the Environmental Protection Agency] to make a comprehensive settlement of environmental enforcement cases. Essentially, the EPA negotiates with the violator to arrive at negotiated agreements containing comprehensive, mutually-acceptable solutions to the environmental problem that resulted in a violation. The unique feature of the EPA consent decree process is that it is subject to public notice and comment before it is finally entered into.

While Oposa was not an enforcement case, we can learn from the US experience on consent decrees to arrive at negotiated solutions to environmental disputes. The advantage of this process is that the parties can have a wide choice of actions to address the issues and not be limited to the issues recognized by the court.

The added benefit of consent decrees over normal negotiations is that it has the imprimatur of the court and can be enforced through court order. While the parties have wide discretion on the remedial actions, the court still has the power to determine whether the action is reasonable, without having to decide for itself what the actual terms should be.

To make progress on this, the Supreme Court may want to adopt rules on consent decrees for environmental cases. The DENR and other agencies may also want to develop capacity to negotiate and enter into consent agreements. Citizen organizations would also need capacity building in this regard.

Summary and Conclusion

When the Supreme Court in Oposa said that the Constitutional right of the people to a healthy environment was as fundamental as the right to self-preservation, it elevated the environment right to the level of civil and political rights. In my view, this is appropriate given the importance of this right to a good quality of life for all citizens and for the sustainable development of the country. This is the reason why an effective and efficient framework for environmental adjudication is necessary.

To fully develop this framework, this paper discussed the issues that needs to be addressed and discussed options that the judicial system, through the Supreme Court as the administrator of the system, may want to take. In sum, environmental cases have features that differentiate them from ordinary civil and criminal cases. Treating them differently does not mean giving special favors or giving bias to environmental causes. Instead, it is recognition that the nature of environmental cases makes it difficult for injured parties to find redress. The special rules only try to correct the situation to balance the playing field.

Administrative measures are intended to make adjudication more efficient, by giving judges the right training and ensuring that the trained judges are available in the areas where the cases are likely to occur. Finally, alternative modes should be encouraged because the nature of environment cases require broader settlements that are more appropriate to negotiation or agency action.