NATURAL RESOURCES AND ENVIRONMENTAL LAW

G.R. No. 101083 July 30, 1993

JUAN ANTONIO, ANNA ROSARIO and JOSE ALFONSO, all surnamed OPOSA, minors,
and represented by their parents ANTONIO and RIZALINA OPOSA, ROBERTA NICOLE
SADIUA, minor, represented by her parents CALVIN and ROBERTA SADIUA, CARLO,
AMANDA SALUD and PATRISHA, all surnamed FLORES, minors and represented by their
parents ENRICO and NIDA FLORES, GIANINA DITA R. FORTUN, minor, represented by
her parents SIGRID and DOLORES FORTUN, GEORGE II and MA. CONCEPCION, all
surnamed MISA, minors and represented by their parents GEORGE and MYRA MISA,
BENJAMIN ALAN V. PESIGAN, minor, represented by his parents ANTONIO and ALICE
PESIGAN, JOVIE MARIE ALFARO, minor, represented by her parents JOSE and MARIA
VIOLETA ALFARO, MARIA CONCEPCION T. CASTRO, minor, represented by her parents
FREDENIL and JANE CASTRO, JOHANNA DESAMPARADO,
minor, represented by her parents JOSE and ANGELA DESAMPRADO, CARLO JOAQUIN
T. NARVASA, minor, represented by his parents GREGORIO II and CRISTINE CHARITY
NARVASA, MA. MARGARITA, JESUS IGNACIO, MA. ANGELA and MARIE GABRIELLE, all
surnamed SAENZ, minors, represented by their parents ROBERTO and AURORA SAENZ,
KRISTINE, MARY ELLEN, MAY, GOLDA MARTHE and DAVID IAN, all surnamed KING,
minors, represented by their parents MARIO and HAYDEE KING, DAVID, FRANCISCO and
THERESE VICTORIA, all surnamed ENDRIGA, minors, represented by their parents
BALTAZAR and TERESITA ENDRIGA, JOSE MA. and REGINA MA., all surnamed ABAYA,
minors, represented by their parents ANTONIO and MARICA ABAYA, MARILIN, MARIO,
JR. and MARIETTE, all surnamed CARDAMA, minors, represented by their parents
MARIO and LINA CARDAMA, CLARISSA, ANN MARIE, NAGEL, and IMEE LYN, all
surnamed OPOSA, minors and represented by their parents RICARDO and MARISSA
OPOSA, PHILIP JOSEPH, STEPHEN JOHN and ISAIAH JAMES, all surnamed QUIPIT,
minors, represented by their parents JOSE MAX and VILMI QUIPIT, BUGHAW CIELO,
CRISANTO, ANNA, DANIEL and FRANCISCO, all surnamed BIBAL, minors, represented
by their parents FRANCISCO, JR. and MILAGROS BIBAL, and THE PHILIPPINE
ECOLOGICAL NETWORK, INC., petitioners,
vs.
THE HONORABLE FULGENCIO S. FACTORAN, JR., in his capacity as the Secretary of
the Department of Environment and Natural Resources, and THE HONORABLE
ERIBERTO U. ROSARIO, Presiding Judge of the RTC, Makati, Branch 66, respondents.

Oposa Law Office for petitioners.

The Solicitor General for respondents.

DAVIDE, JR., J.:

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. 90-77 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
subsequently ordered upon proper motion by the petitioners.  The complaint  was instituted as a
1 2

taxpayers' class suit  and alleges that the plaintiffs "are all citizens of the Republic of the
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Philippines, taxpayers, and entitled to the full benefit, use and enjoyment of the natural resource
treasure that is the country's virgin tropical forests." 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
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for that judgment be rendered:

. . . ordering defendant, his agents, representatives 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." 5

The complaint starts off with the general averments that the Philippine archipelago of 7,100
islands has a land area of thirty million (30,000,000) hectares and is endowed with rich, lush
and verdant rainforests in which varied, rare and unique species of flora and fauna may be
found; these rainforests contain a genetic, biological and chemical pool which is irreplaceable;
they are also the habitat of indigenous Philippine cultures which have existed, endured and
flourished since time immemorial; scientific evidence reveals that in order to maintain a
balanced and healthful ecology, the country's land area should be utilized on the basis of a ratio
of fifty-four per cent (54%) for forest cover and forty-six per cent (46%) for agricultural,
residential, industrial, commercial and other uses; the distortion and disturbance of this balance
as a consequence of deforestation have resulted in a host of environmental tragedies, such as
(a) water shortages resulting from drying up of the water table, otherwise known as the
"aquifer," as well as of rivers, brooks and streams, (b) salinization of the water table as a result
of the intrusion therein of salt water, incontrovertible examples of which may be found in the
island of Cebu and the Municipality of Bacoor, Cavite, (c) massive erosion and the
consequential loss of soil fertility and agricultural productivity, with the volume of soil eroded
estimated at one billion (1,000,000,000) cubic meters per annum — approximately the size of
the entire island of Catanduanes, (d) the endangering and extinction of the country's unique,
rare and varied flora and fauna, (e) the disturbance and dislocation of cultural communities,
including the disappearance of the Filipino's indigenous cultures, (f) the siltation of rivers and
seabeds and consequential destruction of corals and other aquatic life leading to a critical
reduction in marine resource productivity, (g) recurrent spells of drought as is presently
experienced by the entire country, (h) increasing velocity of typhoon winds which result from the
absence of windbreakers, (i) the floodings of lowlands and agricultural plains arising from the
absence of the absorbent mechanism of forests, (j) the siltation and shortening of the lifespan of
multi-billion peso dams constructed and operated for the purpose of supplying water for
domestic uses, irrigation and the generation of electric power, and (k) the reduction of the
earth's capacity to process carbon dioxide gases which has led to perplexing and catastrophic
climatic changes such as the phenomenon of global warming, otherwise known as the
"greenhouse effect."

Plaintiffs further assert that the adverse and detrimental consequences of continued and
deforestation are so capable of unquestionable demonstration that the same may be submitted
as a matter of judicial notice. This notwithstanding, they expressed their intention to present
expert witnesses as well as documentary, photographic and film evidence in the course of the
trial.

As their cause of action, they specifically allege that:

CAUSE OF ACTION

7. Plaintiffs replead by reference the foregoing allegations.

8. Twenty-five (25) years ago, the Philippines had some sixteen (16) million
hectares of rainforests constituting roughly 53% of the country's land mass.

9. Satellite images taken in 1987 reveal that there remained no more than 1.2
million hectares of said rainforests or four per cent (4.0%) of the country's land
area.

10. More recent surveys reveal that a mere 850,000 hectares of virgin old-growth
rainforests are left, barely 2.8% of the entire land mass of the Philippine
archipelago and about 3.0 million hectares of immature and uneconomical
secondary growth forests.

11. Public records reveal that the defendant's, predecessors have granted timber
license agreements ('TLA's') to various corporations to cut the aggregate area of
3.89 million hectares for commercial logging purposes.

A copy of the TLA holders and the corresponding areas covered is hereto
attached as Annex "A".

12. At the present rate of deforestation, i.e. about 200,000 hectares per annum or

25 hectares per hour — nighttime, Saturdays, Sundays and holidays included —
the Philippines will be bereft of forest resources after the end of this ensuing
decade, if not earlier.

13. The adverse effects, disastrous consequences, serious injury and irreparable
damage of this continued trend of deforestation to the plaintiff minor's generation
and to generations yet unborn are evident and incontrovertible. As a matter of
fact, the environmental damages enumerated in paragraph 6 hereof are already
being felt, experienced and suffered by the generation of plaintiff adults.

14. The continued allowance by defendant of TLA holders to cut and deforest the
remaining forest stands will work great damage and irreparable injury to plaintiffs
— especially plaintiff minors and their successors — who may never see, use,
benefit from and enjoy this rare and unique natural resource treasure.

This act of defendant constitutes a misappropriation and/or impairment of the

natural resource property he holds in trust for the benefit of plaintiff minors and
succeeding generations.

15. Plaintiffs have a clear and constitutional right to a balanced and healthful
ecology and are entitled to protection by the State in its capacity as the parens
patriae.

16. Plaintiff have exhausted all administrative remedies with the defendant's
office. On March 2, 1990, plaintiffs served upon defendant a final demand to
cancel all logging permits in the country.

A copy of the plaintiffs' letter dated March 1, 1990 is hereto attached as Annex
"B".

17. Defendant, however, fails and refuses to cancel the existing TLA's to the
continuing serious damage and extreme prejudice of plaintiffs.

18. The continued failure and refusal by defendant to cancel the TLA's is an act
violative of the rights of plaintiffs, especially plaintiff minors who may be left with
a country that is desertified (sic), bare, barren and devoid of the wonderful flora,
fauna and indigenous cultures which the Philippines had been abundantly
blessed with.

19. Defendant's refusal to cancel the aforementioned TLA's is manifestly contrary

to the public policy enunciated in the Philippine Environmental Policy which, in
pertinent part, states that it is the 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 ensure the attainment of an environmental quality that is conductive to a life

of dignity and well-being. (P.D. 1151, 6 June 1977)

20. Furthermore, defendant's continued refusal to cancel the aforementioned

TLA's is contradictory to the Constitutional policy of the State to —
 a. effect "a more equitable distribution of opportunities, income and wealth" and
"make full and efficient use of natural resources (sic)." (Section 1, Article XII of
the Constitution);

b. "protect the nation's marine wealth." (Section 2, ibid);

c. "conserve and promote the nation's cultural heritage and resources (sic)"
(Section 14, Article XIV, id.);

d. "protect and advance the right of the people to a balanced and healthful
ecology in accord with the rhythm and harmony of nature." (Section 16, Article
II, id.)

21. Finally, defendant's act is contrary to the highest law of humankind — the
natural law — and violative of plaintiffs' right to self-preservation and
perpetuation.

22. There is no other plain, speedy and adequate remedy in law other than the
instant action to arrest the unabated hemorrhage of the country's vital life support
systems and continued rape of Mother Earth.  6

On 22 June 1990, the original defendant, Secretary Factoran, Jr., filed a Motion to Dismiss the
complaint based on two (2) grounds, namely: (1) the plaintiffs have no cause of action against
him and (2) the issue raised by the plaintiffs is a political question which properly pertains to the
legislative or executive branches of Government. In their 12 July 1990 Opposition to the Motion,
the petitioners maintain that (1) the complaint shows a clear and unmistakable cause of action,
(2) the motion is dilatory and (3) the action presents a justiciable question as it involves the
defendant's abuse of discretion.

On 18 July 1991, respondent Judge issued an order granting the aforementioned motion to
dismiss.  In the said order, not only was the defendant's claim — that the complaint states no
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cause of action against him and that it raises a political question — sustained, the respondent
Judge further ruled that the granting of the relief prayed for would result in the impairment of
contracts which is prohibited by the fundamental law of the land.

Plaintiffs thus filed the instant special civil action for certiorari under Rule 65 of the Revised
Rules of Court and ask this Court to rescind and set aside the dismissal order on the ground
that the respondent Judge gravely abused his discretion in dismissing the action. Again, the
parents of the plaintiffs-minors not only represent their children, but have also joined the latter in
this case. 8

On 14 May 1992, We resolved to give due course to the petition and required the parties to
submit their respective Memoranda after the Office of the Solicitor General (OSG) filed a
Comment in behalf of the respondents and the petitioners filed a reply thereto.

Petitioners contend that the complaint clearly and unmistakably states a cause of action as it
contains sufficient allegations concerning their right to a sound environment based on Articles
19, 20 and 21 of the Civil Code (Human Relations), Section 4 of Executive Order (E.O.) No. 192
creating the DENR, Section 3 of Presidential Decree (P.D.) No. 1151 (Philippine Environmental
Policy), Section 16, Article II of the 1987 Constitution recognizing the right of the people to a
balanced and healthful ecology, the concept of generational genocide in Criminal Law and the
concept of man's inalienable right to self-preservation and self-perpetuation embodied in natural
law. Petitioners likewise rely on the respondent's correlative obligation per Section 4 of E.O. No.
192, to safeguard the people's right to a healthful environment.

It is further claimed that the issue of the respondent Secretary's alleged grave abuse of
discretion in granting Timber License Agreements (TLAs) to cover more areas for logging than
what is available involves a judicial question.

Anent the invocation by the respondent Judge of the Constitution's non-impairment clause,
petitioners maintain that the same does not apply in this case because TLAs are not contracts.
They likewise submit that even if TLAs may be considered protected by the said clause, it is well
settled that they may still be revoked by the State when the public interest so requires.

On the other hand, the respondents aver that the petitioners failed to allege in their complaint a
specific legal right violated by the respondent Secretary for which any relief is provided by law.
They see nothing in the complaint but vague and nebulous allegations concerning an
"environmental right" which supposedly entitles the petitioners to the "protection by the state in
its capacity as parens patriae." Such allegations, according to them, do not reveal a valid cause
of action. They then reiterate the theory 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 of Government. They therefore assert that the petitioners'
resources is not to file an action to court, but to lobby before Congress for the passage of a bill
that would ban logging totally.

As to the matter of the cancellation of the TLAs, respondents submit that the same cannot be
done by the State without due process of law. Once issued, a TLA remains effective for a
certain period of time — usually for twenty-five (25) years. During its effectivity, the same can
neither be revised nor cancelled unless the holder has been found, after due notice and hearing,
to have violated the terms of the agreement or other forestry laws and regulations. Petitioners'
proposition to have all the TLAs indiscriminately cancelled without the requisite hearing would
be violative of the requirements of due process.

Before going any further, We must first focus on some procedural matters. Petitioners instituted
Civil Case No. 90-777 as a class suit. The original defendant and the present respondents did
not take issue with this matter. Nevertheless, We hereby rule that the said civil case is indeed a
class suit. 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 the court. We
likewise declare that the plaintiffs therein are numerous and representative enough to ensure
the full protection of all concerned interests. Hence, all the requisites for the filing of a valid class
suit under Section 12, Rule 3 of the Revised Rules of Court are present both in the said civil
case and in the instant petition, the latter being but an incident to the former.

This case, however, has a special and novel element. 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. Such a right, as hereinafter expounded, considers
the "rhythm and harmony of nature." Nature means the created world in its entirety.  Such 9

rhythm and harmony indispensably include, inter alia, 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 to the end that their exploration,
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
10

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.

The locus standi of the petitioners having thus been addressed, We shall now proceed to the
merits of the petition.

After a careful perusal of the complaint in question and a meticulous consideration and
evaluation of the issues raised and arguments adduced by the parties, We do not hesitate to
find for the petitioners and rule against the respondent Judge's challenged order for having
been issued with grave abuse of discretion amounting to lack of jurisdiction. The pertinent
portions of the said order reads as follows:

xxx xxx xxx

After a careful and circumspect evaluation of the Complaint, the Court cannot
help but agree with the defendant. For although we believe that plaintiffs have
but the noblest of all intentions, it (sic) fell short of alleging, with sufficient
definiteness, a specific legal right they are seeking to enforce and protect, or a
specific legal wrong they are seeking to prevent and redress (Sec. 1, Rule 2,
RRC). Furthermore, the Court notes that the Complaint is replete with vague
assumptions and vague conclusions based on unverified data. In fine, plaintiffs
fail to state a cause of action in its Complaint against the herein defendant.

Furthermore, the Court firmly believes that the matter before it, being impressed
with political color and involving a matter of public policy, may not be taken
cognizance of by this Court without doing violence to the sacred principle of
"Separation of Powers" of the three (3) co-equal branches of the Government.

The Court is likewise of the impression that it cannot, no matter how we stretch
our jurisdiction, grant the reliefs prayed for by the plaintiffs, i.e., to cancel all
existing timber license agreements in the country and to cease and desist from
receiving, accepting, processing, renewing or approving new timber license
agreements. For to do otherwise would amount to "impairment of contracts"
abhored (sic) by the fundamental law.  11

We do not agree with the trial court's conclusions that the plaintiffs failed to allege with sufficient
definiteness a specific legal right involved or a specific legal wrong committed, and that the
complaint is replete with vague assumptions and conclusions based on unverified data. A
reading of the complaint itself belies these conclusions.

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. 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.

The right to a balanced and healthful ecology carries with it the correlative duty to refrain from
impairing the environment. During the debates on this right in one of the plenary sessions of the
1986 Constitutional Commission, the following exchange transpired between Commissioner
Wilfrido Villacorta and Commissioner Adolfo Azcuna who sponsored the section in question:

MR. VILLACORTA:

Does this section mandate the State to provide sanctions against

all forms of pollution — air, water and noise pollution?

MR. AZCUNA:

Yes, Madam President. The right to healthful (sic) environment

necessarily carries with it the correlative duty of not impairing the
same and, therefore, sanctions may be provided for impairment of
environmental balance.  12

The said right implies, among many other things, the judicious management and conservation of
the country's forests.

Without such forests, the ecological or environmental balance would be irreversiby

disrupted.
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.
13

Aquino promulgated on 10 June 1987 E.O. No. 192,   Section 4 of which expressly mandates
14

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:

Sec. 3. Declaration of 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 the use of the country's natural resources, not only for the
present generation but for future generations as 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.

This policy declaration is substantially re-stated it Title XIV, Book IV of the Administrative Code
of 1987,  specifically in Section 1 thereof which reads:
15

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." Section 2 of the same Title, on the
other hand, specifically speaks of the mandate of the DENR; however, it makes particular
reference to the fact of the agency's being subject to law and higher authority. Said section
provides:

Sec. 2. Mandate. — (1) The Department of Environment 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.

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."   As16

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
17

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 corelative 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.

A cause of action is defined as:

. . . an act or omission of one party in violation of the legal right or rights of the
other; and its essential elements are legal right of the plaintiff, correlative
obligation of the defendant, and act or omission of the defendant in violation of
said legal right. 
18

It is settled in this jurisdiction that in a motion to dismiss based on the ground that the complaint
fails to state a cause of action,   the question submitted to the court for resolution involves the
19

sufficiency of the facts alleged in the complaint itself. No other matter should be considered;
furthermore, the truth of falsity of the said allegations is beside the point for the truth thereof is
deemed hypothetically admitted. The only issue to be resolved in such a case is: admitting such
alleged facts to be true, may the court render a valid judgment in accordance with the prayer in
the complaint?   In Militante vs. Edrosolano,   this Court laid down the rule that the judiciary
20 21

should "exercise the utmost care and circumspection in passing upon a motion to dismiss on the
ground of the absence thereof [cause of action] lest, by its failure to manifest a correct
appreciation of the facts alleged and deemed hypothetically admitted, what the law grants or
recognizes is effectively nullified. If that happens, there is a blot on the legal order. The law itself
stands in disrepute."
After careful examination of the petitioners' complaint, We find the statements under the
introductory affirmative allegations, as well as the specific averments under the sub-heading
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. It
bears stressing, however, that insofar as the cancellation of the TLAs is concerned, there is the
need to implead, as party defendants, the grantees thereof for they are indispensable parties.

The foregoing considered, Civil Case No. 90-777 be said to raise a political question. Policy
formulation or determination by the executive or legislative branches of Government is not
squarely put in issue. What is principally involved is the enforcement of a right vis-a-vis policies
already formulated and expressed in legislation. It must, nonetheless, be emphasized that the
political question doctrine is no longer, the insurmountable obstacle to the exercise of judicial
power or the impenetrable shield that protects executive and legislative actions from judicial
inquiry or 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.

Commenting on this provision in his book, Philippine Political Law,   Mr. Justice Isagani A. Cruz,
22

a distinguished member of this Court, says:

The first part of the authority represents the traditional concept of judicial power,
involving the settlement of conflicting rights as conferred as law. The second part
of the authority represents a broadening of judicial power to enable the courts of
justice to review what was before forbidden territory, to wit, the discretion of the
political departments of the government.

As worded, the new provision vests in the judiciary, and particularly the Supreme
Court, the power to rule upon even the wisdom of the decisions of the executive
and the legislature and to declare their acts invalid for lack or excess of
jurisdiction because tainted with grave abuse of discretion. The catch, of course,
is the meaning of "grave abuse of discretion," which is a very elastic phrase that
can expand or contract according to the disposition of the judiciary.

In Daza vs. Singson,   Mr. Justice Cruz, now speaking for this Court, noted:
23

In the case now before us, the jurisdictional objection becomes even less tenable
and decisive. The reason is that, even if we were to assume that the issue
presented before us was political in nature, we would still not be precluded from
revolving it under the expanded jurisdiction conferred upon us that now covers, in
proper cases, even the political question. Article VII, Section 1, of the
Constitution clearly provides: . . .

The last ground invoked by the trial court in dismissing the complaint is the non-impairment of
contracts clause found in the Constitution. The court a quo declared that:
 The Court is likewise of the impression that it cannot, no matter how we stretch
our jurisdiction, grant the reliefs prayed for by the plaintiffs, i.e., to cancel all
existing timber license agreements in the country and to cease and desist from
receiving, accepting, processing, renewing or approving new timber license
agreements. For to do otherwise would amount to "impairment of contracts"
abhored (sic) by the fundamental law.  24

We are not persuaded at all; on the contrary, We are amazed, if not shocked, by such a
sweeping pronouncement. In the first place, the respondent Secretary did not, for obvious
reasons, even invoke in his motion to dismiss the non-impairment clause. If he had done so, he
would have acted with utmost infidelity to the Government by providing undue and unwarranted
benefits and advantages to the timber license holders because he would have forever bound
the Government to strictly respect the said licenses according to their terms and conditions
regardless of changes in policy and the demands of public interest and welfare. He was aware
that as correctly pointed out by the petitioners, into every timber license must be read Section
20 of the Forestry Reform Code (P.D. No. 705) which provides:

. . . Provided, That when the national interest so requires, the President may
amend, modify, replace or rescind any contract, concession, permit, licenses or
any other form of privilege granted herein . . .

Needless to say, all licenses may thus be revoked or rescinded by executive action. It is
not a contract, property or a property right protested by the due process clause of the
Constitution. In Tan vs. Director of Forestry,   this Court held:
25

. . . A timber license is an instrument by which the State regulates the utilization

and disposition of forest resources to the end that public welfare is promoted. A
timber license is not a contract within the purview of the due process clause; it is
only a license or privilege, which can be validly withdrawn whenever dictated by
public interest or public welfare as in this case.

A license is merely a permit or privilege to do what otherwise would be unlawful,

and is not a contract between the authority, federal, state, or municipal, granting
it and the person to whom it is granted; neither is it property or a property right,
nor does it create a vested right; nor is it taxation (37 C.J. 168). Thus, this Court
held that the granting of license does not create irrevocable rights, neither is it
property or property rights (People vs. Ong Tin, 54 O.G. 7576).

We reiterated this pronouncement in Felipe Ysmael, Jr. & Co., Inc. vs. Deputy Executive
Secretary: 26

. . . Timber licenses, permits and license agreements are the principal

instruments by which the State regulates the utilization and disposition of forest
resources to the end that public welfare is promoted. And it can hardly be
gainsaid that they merely evidence a privilege granted by the State to qualified
entities, and do not vest in the latter a permanent or irrevocable right to the
particular concession area and the forest products therein. They may be validly
amended, modified, replaced or rescinded by the Chief Executive when national
interests so require. Thus, they are not deemed contracts within the purview of
the due process of law clause [See Sections 3(ee) and 20 of Pres. Decree No.
 705, as amended. Also, Tan v. Director of Forestry, G.R. No. L-24548, October
27, 1983, 125 SCRA 302].

Since timber licenses are not contracts, the non-impairment clause, which reads:

Sec. 10. No law impairing, the obligation of contracts shall be passed.  27

cannot be invoked.

In the second place, even if it is to be assumed that the same are contracts, the instant case
does not involve a law or even an executive issuance declaring the cancellation or modification
of existing timber licenses. Hence, the non-impairment clause cannot as yet be invoked.
Nevertheless, granting further that a law has actually been passed mandating cancellations or
modifications, the same cannot still be stigmatized as a violation of the non-impairment clause.
This is because by its very nature and purpose, such as law could have only been passed in the
exercise of the police power of the state for the purpose of advancing the right of the people to a
balanced and healthful ecology, promoting their health and enhancing the general welfare.
In Abe vs. Foster Wheeler
Corp.   this Court stated:
28

The freedom of contract, under our system of government, is not meant to be

absolute. The same is understood to be subject to reasonable legislative
regulation aimed at the promotion of public health, moral, safety and welfare. In
other words, the constitutional guaranty of non-impairment of obligations of
contract is limited by the exercise of the police power of the State, in the interest
of public health, safety, moral and general welfare.

The reason for this is emphatically set forth in Nebia vs. New York,   quoted in Philippine
29

American Life Insurance Co. vs. Auditor General,  to wit:

30

Under our form of government the use of property and the making of contracts
are normally matters of private and not of public concern. The general rule is that
both shall be free of governmental interference. But neither property rights nor
contract rights are absolute; for government cannot exist if the citizen may at will
use his property to the detriment of his fellows, or exercise his freedom of
contract to work them harm. Equally fundamental with the private right is that of
the public to regulate it in the common interest.

In short, the non-impairment clause must yield to the police power of the state.  31

Finally, it is difficult to imagine, as the trial court did, how the non-impairment clause could apply
with respect to the prayer to enjoin the respondent Secretary from receiving, accepting,
processing, renewing or approving new timber licenses for, save in cases of renewal, no
contract would have as of yet existed in the other instances. Moreover, with respect to renewal,
the holder is not entitled to it as a matter of right.

WHEREFORE, being impressed with merit, the instant Petition is hereby GRANTED, and the
challenged Order of respondent Judge of 18 July 1991 dismissing Civil Case No. 90-777 is
hereby set aside. The petitioners may therefore amend their complaint to implead as defendants
the holders or grantees of the questioned timber license agreements.
No pronouncement as to costs.

SO ORDERED.

G.R. No. 189185, August 16, 2016

WILFREDO MOSQUEDA, MARCELO VILLAGANES, JULIETA LAWAGON, CRISPIN

ALCOMENDRAS, CORAZON SABINADA, VIRGINIA CATA-AG, FLORENCIA SABANDON,
AND LEDEVINA ADLAWAN, Petitioners, v. PILIPINO BANANA GROWERS & EXPORTERS
ASSOCIATION, INC., DAVAO FRUITS CORPORATION, AND LAPANDAY AGRICULTURAL
AND DEVELOPMENT CORPORATION, Respondents.

G.R. No. 189305

CITY GOVERNMENT OF DAVAO, Petitioner, v. COURT OF APPEALS, PILIPINO BANANA

GROWERS & EXPORTERS ASSOCIATION (PBGEA), DAVAO FRUITS CORPORATION,
AND LAPANDAY AGRICULTURAL AND DEVELOPMENT CORPORATION, Respondent.

DECISION

BERSAMIN, J.:

This appeal through the consolidated petitions for review on certiorari assails the decision
promulgated on January 9, 20091 whereby the Court of Appeals (CA) reversed and set aside
the judgment rendered on September 22, 2007 by the Regional Trial Court (RTC), Branch 17, in
Davao City upholding the validity and constitutionality of Davao City Ordinance No. 0309-07, to
wit:ChanRoblesVirtualawlibrary

WHEREFORE, premises considered, the appeal is GRANTED. The assailed September 22,
2007 Decision of the Regional Trial Court (RTC), 11th Judicial Region, Branch 17, Davao City,
upholding the validity and constitutionality of Davao City Ordinance No. 0309-07, is
hereby REVERSED and SET ASIDE.

FURTHER, the Writ of Preliminary Injunction dated 28 January 2008 enjoining the City
Government of Davao, and any other person or entity acting in its behalf, from enforcing and
implementing City Ordinance No. 0309-07, is hereby made permanent.

SO ORDERED.

Antecedents

After several committee hearings and consultations with various stakeholders, the
Sangguniang Panlungsod of Davao City enacted Ordinance No. 0309, Series of 2007, to
impose a ban against aerial spraying as an agricultural practice by all agricultural entities within
Davao City, viz.:ChanRoblesVirtualawlibrary
ORDINANCE NO. 0309-07
Series of 2007

AN ORDINANCE BANNING AERIAL SPRAYING AS AN AGRICULTURAL PRACTICE IN ALL

AGRICULTURAL ACTIVITIES BY ALL AGRICULTURAL ENTITIES IN DAVAO CITY

Be it enacted by the Sangguniang Panlungsod of Davao City in session assembled that:

chanRoblesvirtualLawlibrarySECTION 1. TITLE. This Ordinance shall be known as "An

Ordinance Banning Aerial Spraying as an Agricultural Practice in all Agricultural Activities by all
Agricultural Entities in Davao City";

SECTION 2. POLICY OF THE CITY. It shall be the policy of the City of Davao to eliminate the
method of aerial spraying as an agricultural practice in all agricultural activities by all entities
within Davao City;

SECTION 3. DEFINITION OF TERMS:

chanRoblesvirtualLawlibrarya. Aerial Spraying - refers to application of substances through the

use of aircraft of any form which dispenses the substances in the air.

b. Agricultural Practices - refer to the practices conducted by agricultural entities in relation to

their agricultural activities;

c. Agricultural Activities - refer to activities that include, but not limited to, land preparation,
seeding, planting, cultivation, harvesting and bagging;

d. Agricultural Entities - refer to persons, natural or juridical, involved in agricultural activities

e. Buffer Zone - is an identified 30-meter zone within and around the boundaries of agricultural
farms/plantations that need special monitoring to avoid or minimize harm to the environment
and inhabitants pursuant to policies and guidelines set forth in this Ordinance and other
government regulations. It is an area of land that must lie within the property which does not
include public lands, public thoroughfares or adjacent private properties. It must be planted with
diversified trees that grow taller than what are usually planted and grown in the plantation to
protect those within the adjacent fields, neighboring farms, residential area, schools and
workplaces.

SECTION 4. SCOPE AND APPLICABILITY - The provisions of this Ordinance shall apply to all
agricultural entities within the territorial jurisdiction of Davao City;

SECTION 5. BAN OF AERIAL SPRAYING - A ban on aerial spraying shall be strictly enforced
in the territorial jurisdiction of Davao City three (3) months after the effectivity of this Ordinance.

SECTION 6. BUFFER ZONE - Consistent with national legislation and government regulations,
all agricultural entities must provide for a thirty (30) meter buffer zone within the boundaries of
their agricultural farms/plantations. This buffer zone must be properly identified through Global
Positioning System (GPS) survey. A survey plan showing the metes and bounds of each
agricultural farm/plantation must be submitted to the City Mayor's Office, with the buffer zone
clearly identified therein;
SECTION 7. PENAL PROVISION - Violation of any provision of this Ordinance shall be
punished as follows:

chanRoblesvirtualLawlibrarya. First Offense: Fine of P5,000.00 and imprisonment of not less

than one (1) month but not more than three (3) months;

b. Second Offense: Fine of P5,000.00 and imprisonment of not less than three (3) months but
not more than six (6) months and suspension of City-issued permits and licenses for one (1)
year;

c. Third Offense: Fine of P5,000.00 and imprisonment of not less than six (6) months but not
more than one (1) year and perpetual cancellation of City issued permits and licenses;

Provided, that in case the violation has been committed by a juridical person, the person in
charge of the management thereof shall be held liable;

SECTION 8. REPEALING CLAUSE - Any Ordinance that is contrary to or inconsistent with any
of the provisions of this Ordinance shall be deemed amended or repealed accordingly.

SECTION 9. EFFECTIVITY - This Ordinance shall take effect thirty (30) days from its
publication in a newspaper of general circulation in Davao City;

ENACTED, January 23, 2007 by a majority vote of all the Members of the Sangguniang
Panlungsod.2chanroblesvirtuallawlibrary

City Mayor Rodrigo Duterte approved the ordinance on February 9, 2007.3 The ordinance took
effect on March 23, 2007 after its publication in the newspaper Mindanao Pioneer.4 Pursuant to
Section 5 of the ordinance, the ban against aerial spraying would be strictly enforced three
months thereafter.

The Pilipino Banana Growers and Exporters Association, Inc. (PBGEA) and two of its members,
namely: Davao Fruits Corporation and Lapanday Agricultural and Development Corporation
(PBGEA, et al.), filed their petition in the RTC to challenge the constitutionality of the ordinance,
and to seek the issuance of provisional reliefs through a temporary restraining order (TRO)
and/or writ of preliminary injunction. 5 They alleged that the ordinance exemplified the
unreasonable exercise of police power; violated the equal protection clause; amounted to the
confiscation of property without due process of law; and lacked publication pursuant] to Section
5116 of Republic Act No. 7160 (Local Government Code).

On May 8, 2007, the residents living within and adjacent to banana plantations in Davao City led
by Wilfredo Mosqueda,7 joined by other residents of Davao City,8 (Mosqueda, et al.) submitted
their Motion for Leave to Intervene and Opposition to the Issuance of a Preliminary
Injunction.9 The RTC granted their motion on June 4, 2007.10chanrobleslaw

On June 20, 2007, the RTC granted the prayer for issuance of the writ of preliminary injunction,
and subsequently issued the writ.11chanrobleslaw

Judgment of the RTC

On September 22, 2007, after trial, the RTC rendered judgment declaring Ordinance No. 0309-
07 valid and constitutional, decreeing thusly:ChanRoblesVirtualawlibrary

WHEREFORE, finding the subject [O]rdinance No. 0309-07 valid and constitutional in all aspect
of the grounds assailed by the petitioner, said [C]ity [O]rdinance No. 0309-07, is sustained of its
validity and constitutionality.

Accordingly, the order of this court dated June 20, 2007, granting the writ of preliminary
injunction as prayed for by petitioner is ordered cancelled and set aside as a result of this
decision.

SO ORDERED.12chanroblesvirtuallawlibrary

The RTC opined that the City of Davao had validly exercised police power13 under the General
Welfare Clause of the Local Government Code;14 that the ordinance, being based on a valid
classification, was consistent with the Equal Protection Clause; that aerial spraying was distinct
from other methods of pesticides application because it exposed the residents to a higher
degree of health risk caused by aerial drift;15 and that the ordinance enjoyed the presumption of
constitutionality, and could be invalidated only upon a clear showing that it had violated the
Constitution.16chanrobleslaw

However, the RTC, recognizing the impracticability of the 3-month transition period under
Section 5 of Ordinance No. 0309-07, recommended the parties to agree on an extended
transition period.17chanrobleslaw

Decision of the CA

PBGEA, et al. appealed,18 and applied for injunctive relief from the CA,19 which granted the
application20 and consequently issued a TRO to meanwhile enjoin the effectivity of the
ordinance.21chanrobleslaw

On January 9, 2009, the CA promulgated its assailed decision reversing the judgment of the
RTC.22 It declared Section 5 of Ordinance No. 0309-07 as void and unconstitutional for being
unreasonable and oppressive; found the three-month transition period impractical and
oppressive in view of the engineering and technical requirements of switching from aerial
spraying to truck-mounted boom spraying; and opined that the ban ran afoul with the Equal
Protection Clause inasmuch as Section 3(a) of the ordinance - which defined the term aerial
spraying - did not make reasonable distinction between the hazards, safety and beneficial
effects of liquid substances that were being applied aerially; the different classes of pesticides or
fungicides; and the levels of concentration of these substances that could be beneficial and
could enhance agricultural production.

The CA did not see any established relation between the purpose of protecting the public and
the environment against the harmful effects of aerial spraying, on one hand, and the imposition
of the ban against aerial spraying of all forms of substances, on the other. It ruled that the
maintenance of the 30-meter buffer zone within and around the agricultural plantations under
Section 6 of Ordinance No. 0309-07 constituted taking of property without due process because
the landowners were thereby compelled to cede portions of their property without just
compensation; that the exercise of police power to require the buffer zone was invalid because
there was no finding that the 30-meter surrounding belt was obnoxious to the public welfare;
and that, accordingly, Ordinance No. 0309-07 was unconstitutional because of the absence of a
separability clause.

The City of Davao and the intervenors filed their respective motions for reconsideration, but the
CA denied the motions on August 7, 2009.23chanrobleslaw

Hence, the separate, but now consolidated, appeals by petition for review on certiorari.

Issues

In G.R. No. 189185, petitioners Mosqueda, et al. rely on the following grounds,

namely:ChanRoblesVirtualawlibrary

THE COURT OF APPEALS IGNORED FUNDAMENTAL PRECEPTS AND CONCEPTS OF

LAW WHICH, PROPERLY CONSIDERED, NECESSARILY LEAD TO THE CONCLUSION
THAT THE DAVAO ORDINANCE IS CONSTITUTIONAL AND VALID

II

THE DAVAO ORDINANCE IS CONSISTENT WITH THE EQUAL PROTECTION CLAUSE

III

THE MEANS EMPLOYED BY THE DAVAO ORDINANCE IS MORE THAN REASONABLY

RELATED TO THE PURPOSE IT SEEKS TO ACHIEVE

IV

THE DAVAO ORDINANCE IS VALID, BEING DEMONSTRABLY REASONABLE AND FAIR

THE REQUIREMENT RELATING TO THE 30-METER BUFFER ZONE ARE [SIC]

CONSISTENT WITH DUE PROCESS OF LAW, BEING A VALID EXERCISE OF POLICE
POWER

Mosqueda, et al. state that the CA ignored well-established precepts like the primacy of human
rights over property rights and the presumption of validity in favor of the ordinance; that the CA
preferred the preservation of the profits of respondents PBGEA, et al. to the residents' right to
life, health and ecology,24 thereby disregarding the benevolent purpose of the ordinance; that
the CA assumed the functions of the lawmaker when it set aside the wisdom behind the
enactment of the ordinance; that the CA failed to apply the precautionary principle, by which the
State was allowed to take positive actions to prevent harm to the environment and to human
health despite the lack of scientific certainty; that the CA erred in applying the "strict scrutiny
method" in holding that the ordinance violated the Equal Protection Clause because it only
thereby applied in reviewing classifications that affected fundamental rights; that there was
nothing wrong with prohibiting aerial spraying per se considering that even the aerial spraying of
water produced drift that could affect unwilling neighbors whose, constitutional right to a clean
and healthy environment might be impinged;25cralawred that as far as the three-month period
was concerned, the CA should have considered that manual spraying could be conducted while
the PBGEA, et al. laid down the preparations for the conduct of boom spraying;26 that
"reasonableness" could be more appropriately weighed by balancing the interests of the parties
against the protection of basic rights, like the right to life, to health, and to a balanced and
healthful ecology;27 that PBGEA, et al. did not substantiate their claim of potential profit losses
that would result from the shift; that business profits should remain inferior and subordinate to
their fundamental rights as residents of Davao City, which were the rights that the assailed
ordinance has sought to protect;28 that PBGEA, et al. did not explore other modes of pesticide
treatment either as a stop-gap or as a temporary measure while shifting to truck mounted boom
spraying;29 that the imposition of the 30-meter buffer zone was a valid exercise of police power
that necessarily flowed from the protection afforded by the ordinance from the unwanted effects
of ground spraying; that the imposition of the buffer zone did not constitute compensable taking
under police power, pursuant to the pronouncements in Seng Kee & Co. v. Earnshaw and
Piatt30Patalinghug v. Court of Appeals,31 and Social Justice Society (SJS) v. Atienza, Jr.;32 and
that the 30-meter buffer zone conformed with the ISO 1400033 and the DENR Environmental
Compliance Certificate (ECC) requirement.34chanrobleslaw

In G.R. No. 189305, petitioner City of Davao submits the following as the issues to be
considered and resolved, to wit:ChanRoblesVirtualawlibrary

WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT

SECTION 5 OF ORDINANCE NO. 0309-07, SERIES OF 2007 IS OPPRESSIVE AND AN
UNREASONABLE EXERCISE OF DELEGATED POLICE POWER

II

WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT

ORDINANCE NO. 0309-07 IS VIOLATIVE OF THE EQUAL PROTECTION CLAUSE OF THE
CONSTITUTION;

III

WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT

ORDINANCE NO. 0309-07 CONSTITUTES TAKING OF PROPERTY WITHOUT
COMPENSATION, THUS, VIOLATIVE OF THE DUE PROCESS CLAUSE OF THE
CONSTITUTION

IV

WHETHER OR NOT AERIAL SPRAYING OF FUNGICIDES IS SAFE TO THE PEOPLE AND

THE ENVIRONMENT

The City of Davao explains that it had the authority to enact the assailed ordinance because it
would thereby protect the environment and regulate property and business in the interest of the
general welfare pursuant to Section 458 of the Local Government Code;35 that the ordinance
was enacted to carry out its mandate of promoting the public welfare under the General Welfare
Clause (Section 16 of the Local Government Code); that the ordinance did not violate the Equal
Protection Clause because the distinction lies in aerial spray as a method of application being
more deleterious than other modes; that aerial spraying produces more drift that causes
discomfort, and an extremely offensive and obnoxious experience the part of the residents; that
spray drift cannot be controlled even with use by the respondents of highly advanced apparatus,
such as the Differential Global Positioning System, Micronair Rotary Drift Control Atomizers,
Intellimap, Intelliflow Spray Valve System, Control and Display Unit and the Target Flow Spray
Valve Switch System;36 that because of the inherent toxicity of Mancozeb (the fungicide aerially
applied by the respondents), there is no need to provide for a substantial distinction based on
the level of concentration;37 that as soon as fungicides are released in the air, they become air
pollutants pursuant to Section 5 of Republic Act No. 8749 (Philippine Clean Air Act of
1999),38 and the activity thus falls under the authority of the local government units to ban; and
that the ordinance does not only seek to protect and promote human health but also serves as a
measure against air pollution.

The City of Davao insists that it validly exercised police power because it does not thereby
oblige the shift from aerial to truck-mounted boom spraying; that the respondents only choose
boom spraying to justify the alleged impracticability of the transition period by erroneously
adding the months required for each of the stages without considering other steps that may be
simultaneously undertaken;39 that the Court should apply its ruling in Social Justice Society v.
Atienza, Jr.,40 by which the six-month period for the folding-up of business operations was
declared a legitimate exercise of police power; that the respondents did not present any
documentary evidence on the feasibility of adopting other methods;41 that only 1,800 hectares
out of 5,200 hectares of plantations owned and operated by PBGEA's members use aerial
spraying, hence, the perceived ominous consequence of imposing a ban on aerial spray to the
banana industry is entirely misleading;42 that the urgency of prohibiting aerial spray justifies the
three-month transition period; that the complaints of the community residents - ranging from skin
itchiness, contraction and/or tightening in the chest, nausea, appetite loss and difficulty in
breathing after exposure to spray mist - only prove that aerial spraying brings discomfort and
harm to the residents; that considering that the testimony of Dr. Lynn Crisanta R. Panganiban, a
pharmacologist and toxicologist, established that fungicides could cause debilitating effects on
the human body once inhaled or digested, the CA erred in holding that there was no correlation
between aerial application and the complaints of the residents; that given that aerial spray
produces more drift and is uncontrollable compared to the other methods of applying fungicides,
the ordinance becomes reasonable;43 and that the medical-related complaints of the residents
need not be proven by medical records considering that these were based on personal
knowledge.44chanrobleslaw
The City of Davao contends that the imposition of the 30-meter buffer zone is a valid exercise of
police power, rendering the claim for just compensation untenable; that the maintenance of the
buffer zone does not require the respondents to cede a portion of their landholdings; that the
planting of diversified trees within the buffer zone will serve to insulate the residents from spray
drift; that such buffer zone does not deprive the landowners of the lawful and beneficial use of
their property;45 and that the buffer zone is consistent with the Constitution, which reminds
property owners that the use of property bears a social function.46chanrobleslaw

In their comment, the respondents posit that the petition of the City; of Davao should be
dismissed for failure to attach material portions of the records, and for raising factual errors that
are not within the realm of this appeal by petition for review on certiorari;47 that the CA correctly
declared the ordinance as unreasonable due to the impossibility of complying with the three-
month transition period; that shifting from aerial to truck-mounted boom spraying will take at
least three years and entails careful planning, equipment and machineries, civil works, and
capital funding of at least P400,000,000.00;48 that the Court could rely on its ruling in City of
Manila v. Laguio, Jr.,49 where an ordinance directing an existing establishment to wind up or to
transfer its business was declared as confiscatory in nature, and, therefore,
unconstitutional;50 that the total ban against aerial sprayig, coupled with the inadequate time to
shift to truck-mounted boom spraying, effectively deprives the respondents with an efficient
means to control the spread of the Black Sigatoka disease that threatens the banana
plantations; that the ordinance will only expose the plantations to the virulent disease that is
capable of infecting 60% of the plantations on a single cycle51 missed;52 that compared with
other modes of application, aerial spraying is more cost-efficient, safe and accurate; that truck-
mounted boom spraying, for instance, requires 80-200 liters of solution per hectare,53 while
manual spraying uses 200-300 liters of solution per hectare; that aerial spraying oily requires 30
liters per hectare; that in terms of safety and accuracy, manual spraying is the least safe and
accurate,54 and produces more drift than aerial spraying;55 that due to the 300-liter solution
required, the workers will be more exposed to the solution during manual application and such
application will thus be more in conflict with the purpose of the ordinance to prevent human
exposure;56 that the respondents also find the irrigation sprinklers suggested by the City of
Davao as wasteful, unsafe and impractical because it cannot provide the needed coverage for
application of the solution to effectively control. the Black Sigatoka disease; that in contrast,
aerial application, coupled with the latest state of the art technology and equipment, ensures
accuracy, effectiveness, efficiency and safety compared to the other methods of application;
that the respondents vouch for the safety of the fungicides they use by virtue of such fungicides
having been registered with the Fertilizer and Pesticide Authority (FPA) and classified as
Category IV,57 and found to be mild; and that oral ingestion in large doses is required before any
adverse effects to humans may result.58chanrobleslaw

The respondents lament that the ban was imposed without any scientific basis; that the
report59 prepared by a fact-finding team (composed of the Vice Mayor, the City Health Officer,
The City Planning and Development Coordinator and the Assistance City Planning and
Development Coordinator) organized by the City of Davao revealed that there was no scientific
evidence to support the clamor for the ban against aerial spraying; that furthermore, national
government agencies like the Department of Agriculture (DA), Department of Health (DOR) and
the Department of Trade and Industry (DTI) similarly concluded that there was no scientific
evidence to support the ban;60 that for four decades since the adoption of aerial spraying, there
has been no reported outbreak or any predisposition to ailment connected with the pesticides
applied; that the testimonies of the residents during the trial were mere "emotional anecdotal
evidence" that did not establish any scientific or medical bases of any causal connection
between the alleged health conditions complained of and the fungicides applied during aerial
spraying;61 that the allegations of health and environmental harm brought by the pesticides used
to treat the banana plantations were unfounded; that the 2001 study of the International Agency
for Research on Cancer showed that, contrary to the claim of Dra. Panganiban, the by-product
of Mancozeb (Ethylenethiourea or ETU) was "non-genotoxic" and not expected to produce
thyroid cancer;62 that Carlos Mendoza, a geo-hydrologist and geophysicist, testified that
underground water contamination through aerial spraying would be impossible because of the
presence of latex, thick layers of clay and underlying rock formations;63 that even the study
conducted by the Philippine Coconut Authority (PCA) showed that the rhinoceros beetle
infestation in coconut plantations adjacent to the banana plantations was due to the farmer's
failure to observe phyto-sanitary measures, not to aerial spraying;64 that furthermore, aerial
spraying is internationally accepted as a "Good Agricultural Practice" (GAP)65 under the
International Code of Conduct on the Distribution and Use of Pesticides by the United Nations-
Food and Agricultural Organization (UN-FAO); that as such, they observe the standards laid
down by the UN-FAO, and utilize aerial spraying equipment that will ensure accuracy, safety
and efficiency in applying the substances, and which more than complies with the requirement
under the Guidelines on Good Practice for Aerial Application of Pesticides (Rome 2001);66 that
in addition, they strictly observe standard operating procedures prior to take-off,67 in-flight68 and
post-flight;69 that they substantially invested in state-of-the-art technology and equipment
designed to ensure safety, accuracy, and effectiveness of aerial spraying operations, to avoid
aerial drift;70 that their equipment include: wind meters (to measure the wind velocity in a
specific area), wind cones (to determine the wind direction, and whether the wind is a headwind,
tailwind or a crosswind); central weather station (to measure wind speed, the temperature and
relative humidity), Differential Global Positioning System (DGPS),71 Intellimap,72 Control and
Display Unit,73 Micronair Rotary Drift Control Atomizers (AU 5000 Low-Drift model),74 Intelliflow
Spray Valve System,75 and Target Flow Spray Valve Switch System;76 and that they want to
minimize, if not, eliminate the occurrence of spray drift in order to minimize wastage of
resources and reduced efficiency of spraying programs implemented to control the Black
Sigatoka disease.77chanrobleslaw

The respondents maintain that Ordinance No. 0309-07 will regulate aerial spraying as a method
of application, instead of the substances being used therein; that the prohibition is overbroad in
light of other available reasonable measures that may be resorted to by the local government;
that the ordinance is unreasonable, unfair, oppressive, and tantamount to a restriction or
prohibition of trade;78 that the ordinance will effectively impose a prohibition against all
pesticides, including fungicides that fall under the mildest type of substance; that as such, the
petitioner has disregarded existing valid and substantive classifications established and
recognized by the World Health Organization (WHO) that are adopted by the FPA; that the FPA
is the national agency armed with the professional competence, technical expertise, and legal
mandate to deal with the issue of use and application of pesticides in our country; that the
fungicides they administer are duly registered with the FPA, and with other more developed
countries that have observed a stricter environmental and public health regulation such as the
United States Environmental Protection Agency (EPA) and the European Union (EU); that as
such, the City of Davao has disregarded valid, substantial and significant distinctions between
levels of concentration of the fungicides in the water solution aerially sprayed; that it is the FPA
that regulates the level of concentration of agricultural chemicals prior to commercial distribution
and use in the country; that the members of PBGEA only spray a water solution (water cocktail)
containing 0.1 liter to 1.5 liters of the active ingredient of fungicide in a 30-liter water solution per
hectare that has undergone rigorous testing and .evaluation prior to registration by the FPA; that
the active ingredients of the fungicide are so diluted that no harm may be posed to public health
or to the environment through aerial application;79 that the ordinance was so broad that it
prohibits aerial application of any substance, including water;80 and that aside from fungicides,
the respondents also aerially apply vitamins, minerals and organic fertilizers. 81chanrobleslaw

The respondents submit that the maintenance of the 30-meter buffer zone under Section 5 of
the ordinance constitutes an improper exercise of police power; that the ordinance will require
all landholdings to maintain the buffer zone, thereby diminishing to a mere 1,600 square meters
of usable and productive land for every hectare of the plantation bounding residential areas,
with the zone being reserved for planting "diversified trees;" that this requirement amounts to
taking without just compensation or due process; and that the imposition of the buffer zone
unduly deprives all landowners within the City of Davao the beneficial use of their
property;82 that the precautionary principle cannot be applied blindly, because its application still
requires some scientific basis; that the principle is also based on a mere declaration that has not
even reached the level of customary international law, not on a treaty binding on the
Government.83chanrobleslaw

The respondents argue that the illegality of the transition period results in the invalidity of the
ordinance as it does not carry a separability clause; and that the absence of such clause
signifies the intention of the Sangguniang Panlungsod of City of Davao to make the ordinance
effective as a whole.84chanrobleslaw

The main issue is whether or not Ordinance No. 0309-07 is unconstitutional on due process and
equal protection grounds for being unreasonable and oppressive, and an invalid exercise of
police power: (a) in imposing a ban on aerial spraying as an agricultural practice in Davao City
under Section 5; (b) in decreeing a 3-month transition-period to shift to other modes of pesticide
application under Section 5; and (c) in requiring the maintenance of the 30-meter buffer zone
under Section 6 thereof in all agricultural lands in Davao City.

Ruling of the Court

We deny the petitions for review for their lack of merit.

I
Preliminary considerations:
The significant role of the banana industry
in ensuring economic stability and food security

There is no question that the implementation of Ordinance No. 0309-07, although the ordinance
concerns the imposition of the ban against aerial spraying in all agricultural lands within Davao
City, will inevitably have a considerable impact on the country's banana industry, particularly on
export trading.

Banana exportation plays a significant role in the maintenance of the country's economic,
stability and food security. Banana is a consistent dollar earner and the fourth largest produced
commodity in the Philippines.85 In 2010, the Philippines figured among the top three banana
producing countries in the world.86 In 2014, fresh bananas accounted for 17% of the country's
top agricultural export commodities, gaining a close second to coconut oil with 18%.87 The
Davao Region (Region XI)88 was the top banana producing region in 2013, with a production
growth rate of 16.4%, and 33.76% share in the total agricultural output of the
Region.89chanrobleslaw

Despite these optimistic statistics, the banana industry players struggle to keep up with the
demands of the trade by combatting the main threat to production posed by two major fungal
diseases: the Panama Disease Tropical Race 4 (Fusarium oxysprum f.sp. cubense) and the
Black Sigatoka leaf spot disease (Mycosphaerella ffiensis morelet). Pesticides have proven to
be effective only against the Black Sigatoka disease. There is yet no known cure for the
Panama disease.90chanrobleslaw

The menace of the Black Sigatoka disease cannot be taken lightly. The disease causes
destruction of the plant by significantly reducing the leaf area, leading to premature ripening of
the produce and resulting in yield losses of at least 50%.91 Due to its effects on banana export
trading, the disease has emerged as a global concern that has correspondingly forced banana
producers to increase the use of chemical pesticides.92 Protectant fungicides such as
Mancozeb, chlorothalonil and Propiconazole are applied to combat the disease.93 These
agricultural chemicals are aerially applied by the respondents in the banana plantations within
the jurisdiction of Davao City to arrest the proliferation of the disease.

Considering that banana export plantations exist in vast monocultures, effective treatment of the
Black Sigatoka disease is done by frequent aerial application of fungicides. This is an expensive
practice because it requires permanent landing strips, facilities for the mixing and loading of
fungicides, and high recurring expense of spray materials.94 The cost of aerial spraying
accounts to 15-20% of the final retail price of the crop, making the technology essentially
unavailable to small landholdings that are more vulnerable to the disease.95chanrobleslaw

Aerial spraying has become an agricultural practice in Davao City since the establishment of the
banana plantations in 1960.96 Out of the 5,205 hectares of commercial plantations devoted to
Cavendish banana being operated by the respondents in Davao City,97 around 1,800 hectares
receive treatment through aerial application. These plantations are situated in Barangays Sirib,
Manuel Guianga, Tamayong, Subasta Dacudao, Lasang, Mandug, Waan, Tigatto and
Callawa,98 and are affected by the ban imposed by Ordinance No. 0309-07. The DTI has issued
a statement to the effect that the ban against aerial spraying in banana plantations "is expected
to kill the banana industry," affects the socio-economic development of the barangays hosting
the affected plantations, and has a disastrous impact on export trading. The DTI has forecasted
that the ban would discourage the entry of new players in the locality, which would have a
potential drawback in employment generation.99chanrobleslaw

II
The Sangguniang Bayan of Davao City
enacted Ordinance No. 0309-07
under its corporate powers

The petitioners assert that Ordinance No. 0309-07 is a valid act of the Sangguniang Bayan of
Davao City- pursuant to its delegated authority to exercise police power in the furtherance of
public welfare and in ensuring a sound and balanced environment for its constituents. The
respondents negate this assertion, describing the ordinance as unreasonable, discriminatory
and oppressive.

The petitioners' assertion of its authority to enact Ordinance No. 0309-07 is upheld.
To be considered as a valid police power measure, an ordinance must pass a two-pronged test:
the formal (i.e., whether the ordinance is enacted within the corporate powers of the local
government unit, and whether it is passed in accordance with the procedure prescribed by law);
and the substantive (i.e., involving inherent merit, like the conformity of the ordinance with the
limitations under the Constitution and the statutes, as well as with the requirements of fairness
and reason, and its consistency with public policy).100chanrobleslaw

The formalities in enacting an ordinance are laid down in Section 53101 and Section 54102 of The
Local Government Code. These provisions require the ordinance to be passed by the majority
of the members of the sanggunian concerned, and to be presented to the mayor for approval.
With no issues regarding quorum during its deliberation having been raised, and with its
approval of by City Mayor Duterte not being disputed, we see no reason to strike down
Ordinance No. 0309-07 for non-compliance with the formal requisites under the Local
Government Code.

We next ascertain whether the City of Davao acted within the limits of its corporate powers in
enacting Ordinance No. 0309-07.

The corporate powers of the local government unit confer the basic authority to enact legislation
that may interfere with personal liberty, property, lawful businesses and occupations in order to
promote the general welfare.103 Such legislative powers spring from the delegation thereof by
Congress through either the Local Government Code or a special law. The General Welfare
Clause in Section 16 of the Local Government Code embodies the legislative grant that enables
the local government unit to effectively accomplish and carry out the declared objects of its
creation, and to promote and maintain local autonomy.104 Section 16
reads:ChanRoblesVirtualawlibrary

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.

Section 16 comprehends two branches of delegated powers, namely: the general legislative

power and the police power proper. General legislative power refers to the power delegated by
Congress to the local legislative body, or the Sangguniang Panlungsod in the case of Dayao
City,105 to enable the local legislative body to enact ordinances and make regulations. This
power is limited in that the enacted ordinances must not be repugnant to law, and the power
must be exercised to effectuate and discharge the powers and duties legally conferred to the
local legislative body. The police power proper, on the other hand, authorizes the local
government unit to enact ordinances necessary and proper for the health and safety, prosperity,
morals, peace, good order, comfort, and convenience of the local government unit and its
constituents, and for the protection of their property.106chanrobleslaw

Section 458 of the Local Government Code explicitly vests the local government unit with the
authority to enact legislation .aimed at promoting the general
welfare, viz.:ChanRoblesVirtualawlibrary

Section 458. Powers, Duties, Functions and Compensation. — (a) The sangguniang

panlungsod, as the legislative body of the city, shall enact ordinances, approve resolutions and
appropriate funds for the general welfare of the city and its inhabitants pursuant to Section 16 of
this Code and in the proper exercise of the corporate powers of the city as provided for under
Section 22 of this Code. x x x

In terms of the right of the citizens to health and to a balanced and healthful ecology, the local
government unit takes its cue from Section 15 and Section 16, Article II of the 1987 Constitution.
Following the provisions of the Local Government Code and the Constitution, the acts of the
local government unit designed to ensure the health and lives of its constituents and to promote
a balanced and healthful ecology are well within the corporate powers vested in the local
government unit. Accordingly, the Sangguniang Bayan of Davao City is vested with the requisite
authority to enact an ordinance that seeks to protect the health and well-being of its
constituents.

The respondents pose a challenge against Ordinance No. 0309-07 on the ground that the
Sangguniang Bayan of Davao City has disregarded the health of the plantation workers,
contending that by imposing the ban against aerial spraying the ordinance would place the
plantation workers at a higher health risk because the alternatives of either manual or truck-
boom spraying method would be adopted; and that exposing the workers to the same risk
sought to be prevented by the ordinance would defeat its purported purpose.

We disagree with the respondents.

With or without the ban against aerial spraying, the health and safety of plantation workers are
secured by existing state policies, rules and regulations implemented by the FPA, among
others, which the respondents are lawfully bound to comply with. The respondents even
manifested their strict compliance with these rules, including those in the UN-FAO Guidelines on
Good Practice for Aerial Application of Pesticides (Rome 2001). We should note that the Rome
2001 guidelines require the pesticide applicators to observe the standards provided therein to
ensure the health and safety of plantation workers. As such, there cannot be any imbalance
between the right to health of the residents vis-a-vis the workers even if a ban will be imposed
against aerial spraying and the consequent adoption of other modes of pesticide treatment.

Furthermore, the constitutional right to health and maintaining environmental integrity are
privileges that do not only advance the interests of a group of individuals. The benefits of
protecting human health and the environment transcend geographical locations and even
generations. This is the essence of Sections 15 and 16, Article II of the Constitution. In Oposa
v. Factoran, Jr.107 we declared that the right to a balanced and healthful ecology under Section
16 is an issue of transcendental importance with intergenerational implications. It is under this
milieu that the questioned ordinance should be appreciated.

Advancing the interests of the residents who are vulnerable to the alleged health risks due to
their exposure to pesticide drift justifies the motivation behind the enactment of the ordinance.
The City of Davao has the authority to enact pieces of legislation that will promote the general
welfare, specifically the health of its constituents. Such authority should not be construed,
however, as a valid license for the City of Davao to enact any ordinance it deems fit to
discharge its mandate. A thin but well-defined line separates authority to enact legislations from
the method of accomplishing the same.

By distinguishing authority from method we face this question: Is a prohibition against aerial
spraying a lawfully permissible method that the local government unit of Davao City may adopt
to prevent the purported effects of aerial drift? To resolve this question, the Court must dig
deeper into the intricate issues arising from these petitions.

II
Ordinance No. 0309-07 violates the Due Process Clause

A valid ordinance must not only be enacted within the corporate powers of the local government
and passed according to the procedure prescribed by law.108 In order to declare it as a valid
piece of local legislation, it must also comply with the following substantive requirements,
namely: (1) it must not contravene the Constitution or any statute; (2) it must be fair, not
oppressive; (3) it must not be partial or discriminatory; (4) it must not prohibit but may regulate
trade; (5) it must be general and consistent with public policy; and (6) it must not be
unreasonable.109chanrobleslaw

In the State's exercise of police power, the property rights of individuals may be subjected to
restraints and burdens in order to fulfill the objectives of the Government.110 A local government
unit is considered to have properly exercised its police powers only if it satisfies the following
requisites, to wit: (1) the interests of the public generally, as distinguished from those of a
particular class, require the interference of the State; and (2) the means employed are
reasonably necessary for the attainment of the object sought to be accomplished and not unduly
oppressive.111 The first requirement refers to the Equal Protection Clause of the Constitution; the
second, to the Due Process Clause of the Constitution.112chanrobleslaw

Substantive due process requires that a valid ordinance must have a sufficient justification for
the Government's action.113 This means that in exercising police power the local government
unit must not arbitrarily, whimsically or despotically enact the ordinance regardless of its
salutary purpose. So long as the ordinance realistically serves a legitimate public purpose, and
it employs means that are reasonably necessary to achieve that purpose without unduly
oppressing the individuals regulated, the ordinance must survive a due process
challenge.114chanrobleslaw

The respondents challenge Section 5 of Ordinance No. 0309-07 for being unreasonable and
oppressive in that it sets the effectivity of the ban at three months after publication of the
ordinance. They allege that three months will be inadequate time to shift from aerial to truck-
mounted boom spraying, and effectively deprives them of efficient means to combat the Black
Sigatoka disease.

The petitioners counter that the period is justified considering the urgency of protecting the
health of the residents.

We find for the respondents.

The impossibility of carrying out a shift to another mode of pesticide application within three
months can readily be appreciated given the vast area of the affected plantations and the
corresponding resources required therefor. To recall, even the RTC recognized the
impracticality of attaining a full-shift to other modes of spraying within three months in view of
the costly financial and civil works required for the conversion.115 In the assailed decision, the
CA appropriately observed:ChanRoblesVirtualawlibrary

There appears to be three (3) forms of ground spraying, as distinguished from aerial spraying,
which are: 1. "Truck-mounted boom spraying;" 2. "manual or backpack spraying." and 3.
"sprinkler spraying." Petitioners-appellants claim that it was physically impossible for them to
shift to "truck-mounted boom spraying" within three (3) months before the aerial spraying ban is
actually enforced. They cited the testimony of Dr. Maria Emilia Rita G. Fabregar, Ph.D, PBGEA
Chairperson, to the effect that since banana plantations in Davao City were configured for aerial
spraying, the same lack the road network to make "truck-mounted boom spraying" possible.
According to Dr. Fabregar, it was impossible to construct such road networks in a span of three
(3) months. Engr. Magno P. Porticos, Jr., confirmed that the shift demands the construction of
three hundred sixty (360) linear kilometers of road which cannot be completed in three (3)
months.

In their separate testimonies, Dr. Fabregar and Engr. Porticos explained that a shift to "truck-
mounted boom spraying" requires the following steps which may be completed in three (3)
years:ChanRoblesVirtualawlibrary

1. six (6) months for planning the reconfiguration of banana plantations to ensure effective truck-
mounted boom spraying for the adequate protections of the plantations from the Black Sigatoka
fungus and other diseases, while maximizing land use;

2. two (2) months to secure government permits for infrastructure works to be undertaken
thereon;

3. clearing banana plants and dismantling or reconstructing fixed infrastructures, such as roads,
drains, cable ways, and irrigation facilities, which phase may be completed in eighteen (18)
months;

4. importation and purchase of trucks mounted with boom spraying, nurse trucks and protective
gears. The placing of orders and delivery of these equipments, including the training [of] the
personnel who would man the same, would take six (6) months; and cralawlawlibrary

5. securing the needed capitalization to finance these undertakings would take six (6) months to
a year.

Ms. Maria Victoria E. Sembrano, CPA, Chairperson of the PBGEA Finance Committee, testified
that her committee and the Technical Committee and Engineering Group of PBGEA conducted
a feasibility study to determine the cost in undertaking the shift to ground spraying. Their
findings fixed the estimated cost for the purpose at Php 400 Million.

xxxx

Both appellees failed to rebut the foregoing testimonies with empirical findings to the contrary.

xxxx

Thus, in view of the infrastructural requirements as methodically explained, We are convinced

that it was physically impossible for petitioners-appellants to carry out a carefully planned
configuration of vast hectares of banana plantations and be able to actually adopt "truck-
mounted boom spraying" within three (3) months. To compel petitioners-appellants to abandon
aerial spraying in favor of "manual or backpack spraying" or "sprinkler spraying" within 3 months
puts petitioners-appellants in a vicious dilemma between protecting its investments and the
health of its workers, on the one hand, and the threat of prosecution if they refuse to comply
with the imposition. We even find the 3-months transition period insufficient, not only in
acquiring and gearing-up the plantation workers of safety appurtenances, but more importantly
in reviewing safety procedures for "manual or backpack spraying" and in training such workers
for the purpose. Additionally, the engineering works for a sprinkler system in vast hectares of
banana plantations could not possibly be completed within such period, considering that safety
and efficiency factors need to be considered in its structural re-designing.

xxxx

Respondent-appellee argues that the Ordinance merely banned an agricultural practice and did
not actually prohibit the operation of banana plantations; hence, it is not oppressive. While We
agree that the measure did not impose a closure of a lawful enterprise, the proviso in Section 5,
however, compels petitioners-appellants to abandon aerial spraying without affording them
enough time to convert and adopt other spraying practices. This would preclude petitioners-
appellants from being able to fertilize their plantations with essential vitamins and minerals
substances, aside from applying thereon the needed fungicides or pesticides to control, if not
eliminate the threat of, plant diseases. Such an apparent eventuality would prejudice the
operation of the plantations, and the economic repercussions thereof would just be akin to
shutting down the venture.

This Court, therefore, finds Section 5 of Ordinance No. 0309-07 an invalid provision because
the compulsion thereunder to abandon aerial spraying within an impracticable period of "three
(3) months after the effectivity of this Ordinance" is "unreasonable, oppressive and impossible to
comply with."116chanroblesvirtuallawlibrary

The required civil works for the conversion to truck-mounted boom spraying alone will consume
considerable time and financial resources given the topography and geographical features of
the plantations.117 As such, the conversion could not be completed within the short timeframe of
three months. Requiring the respondents and other affected individuals to comply with the
consequences of the ban within the three-month period under pain of penalty like fine,
imprisonment and even cancellation of business permits would definitely be oppressive as to
constitute abuse of police power.

The respondents posit that the requirement of maintaining a buffer zone under Section 6 of the
ordinance violates due process for being confiscatory; and that the imposition unduly deprives
all agricultural landowners within Davao City of the beneficial use of their property that amounts
to taking without just compensation.

The position of the respondents is untenable.

In City of Manila v. Laguio, Jr.,118 we have thoroughly explained that taking only becomes
confiscatory if it substantially divests the owner of the beneficial use of its
property, viz.:ChanRoblesVirtualawlibrary

An ordinance which permanently restricts the use of property that it cannot be used for any
reasonable purpose goes beyond regulation and must be recognized as a taking of the property
without just compensation. It is intrusive and violative of the private property rights of individuals.

The Constitution expressly provides in Article III, Section 9, that "private property shall not be
taken for public use without just compensation." The provision is the most important protection
of property rights in the Constitution. This is a restriction on the general power of the
government to take property. The constitutional provision is about ensuring that the government
does not confiscate the property of some to give it to others. In part too, it is about loss
spreading. If the government takes away a person's property to benefit society, then society
should pay. The principal purpose of the guarantee is "to bar the Government from forcing some
people alone to bear public burdens which, in all fairness and justice, should be borne by the
public as a whole.

There are two different types of taking that can be identified. A "possessory" taking occurs when
the government confiscates or physically occupies property. A "regulatory" taking occurs when
the government's regulation leaves no reasonable economically viable use of the property.

In the landmark case of Pennsylvania Coal v. Mahon, it was held that a taking also could be
found if government regulation of the use of property went "too far." When regulation reaches a
certain magnitude, in most if not in all cases there must be an exercise of eminent domain and
compensation to support the act. While property may be regulated to a certain extent, if
regulation goes too far it will be recognized as a taking.

No formula or rule can be devised to answer the questions of what is too far and when
regulation becomes a taking. In Mahon, Justice Holmes recognized that it was "a question of
degree and therefore cannot be disposed of by general propositions." On many other occasions
as well, the U.S. Supreme Court has said that the issue of when regulation constitutes a taking
is a matter of considering the facts in each case. The Court asks whether justice and fairness
require that the economic loss caused by public action must be compensated by the
government and thus borne by the public as a whole, or whether the loss should remain
concentrated on those few persons subject to the public action.

What is crucial in judicial consideration of regulatory takings is that government regulation is a

taking if it leaves no reasonable economically viable use of property in a manner that interferes
with reasonable expectations for use. A regulation that permanently denies all economically
beneficial or productive use of land is, from the owner's point of view, equivalent to a "taking"
unless principles of nuisance or property law that existed when the owner acquired the land
make the use prohibitable. When the owner of real property has been called upon to sacrifice all
economically beneficial uses in the name of the common good, that is, to leave his property
economically idle, he has suffered a taking.

A regulation which denies all economically beneficial or productive use of land will require
compensation under the takings clause. Where a regulation places limitations on land that fall
short of eliminating all economically beneficial use, a taking nonetheless may have occurred,
depending on a complex of factors including the regulation's economic effect on the landowner,
the extent to which the regulation interferes with reasonable investment-backed expectations
and the character of government action. These inquiries are informed by the purpose of the
takings clause which is to prevent the government from forcing some people alone to bear
public burdens which, in all fairness and justice, should be borne by the public as a whole.

A restriction on use of property may also constitute a "taking" if not reasonably necessary to the
effectuation of a substantial public purpose or if it has an unduly harsh impact on the distinct
investment-backed expectations of the owner. (bold Emphasis supplied)

The establishment of the buffer zone is required for the purpose of minimizing the effects of
aerial spraying within and near the plantations. Although Section 3(e) of the ordinance requires
the planting of diversified trees within the identified buffer zone, the requirement cannot be
construed and deemed as confiscatory requiring payment of just compensation. A landowner
may only be entitled to compensation if the taking amounts to a permanent denial of all
economically beneficial or productive uses of the land. The respondents cannot be said to be
permanently and completely deprived of their landholdings because they can still cultivate or
make other productive uses of the areas to be identified as the buffer zones.

III
Ordinance No. 0309-07 violates the Equal Protection Clause

A serious challenge being posed against Ordinance No. 0309-07 rests on its supposed collision
with the Equal Protection Clause. The respondents submit that the ordinance transgresses this
constitutional guaranty on two counts, to wit: (1) by prohibiting aerial spraying per se, regardless
of the substance or the level of concentration of the chemicals to be applied; and (2) by
imposing the 30-meter buffer zone in all agricultural lands in Davao City regardless of the sizes
of the landholding.

The constitutional right to equal protection requires that all persons or things similarly situated
should be treated alike, both as to rights conferred and responsibilities imposed. It requires
public bodies and institutions to treat similarly situated individuals in a similar manner. The
guaranty equal protection secures every person within the State's jurisdiction against intentional
and arbitrary discrimination, whether occasioned by the express terms of a statue or by its
improper execution through the State's duly constituted authorities. The concept of equal justice
under the law demands that the State governs impartially, and not to draw distinctions between
individuals solely on differences that are irrelevant to the legitimate governmental
objective.119chanrobleslaw

Equal treatment neither requires universal application of laws to all persons or things without
distinction,120 nor intends to prohibit legislation by limiting the object to which it is directed or by
the territory in which it is to operate.121 The guaranty of equal protection envisions equality
among equals determined according to a valid classification.122 If the groupings are
characterized by substantial distinctions that make real differences, one class may be treated
and regulated differently from another.123 In other word, a valid classification must be: (1) based
on substantial distinctions; (2) germane to the purposes of the law; (3) not limited to existing
conditions only; and (4) equally applicable to all members of the class.124chanrobleslaw

Based on these parameters, we find for the respondents.

The reasonability of a distinction and sufficiency of the justification given by the Government for
its conduct is gauged by using the means-end test.125 This test requires analysis of: (1) the
interests of the public that generally require its exercise, as distinguished from those of a
particular class; and (2) the means employed that are reasonably necessary for the
accomplishment of the purpose and are not unduly oppressive upon individuals.126 To determine
the propriety of the classification, courts resort to three levels of scrutiny, viz: the rational
scrutiny, intermediate scrutiny and strict scrutiny.

The rational basis scrutiny (also known as the rational relation test or rational basis test)
demands that the classification reasonably relate to the legislative purpose.127 The rational basis
test often applies in cases involving economics or social welfare,128 or to any other case not
involving a suspect class.129chanrobleslaw

When the classification puts a quasi-suspect class at a disadvantage, it will be treated under
intermediate or heightened review. Classifications based on gender or illegitimacy receives
intermediate scrutiny.130 To survive intermediate scrutiny, the law must not only further an
important governmental interest and be substantially related to that interest, but the justification
for the classification must be genuine and must not depend on broad
generalizations.131chanrobleslaw

The strict scrutiny review applies when a legislative classification impermissibly interferes with
the exercise of a fundamental right or operates to the peculiar class disadvantage of a suspect
class. The Government carries the burden to prove that the classification is necessary to
achieve a compelling state interest, and that it is the least restrictive means to protect such
interest.132chanrobleslaw

The petitioners advocate the rational basis test. In particular, the petitioning residents of Davao
City argue that the CA erroneously applied the strict scrutiny approach when it declared that the
ordinance violated the Equal Protection Clause because the ban included all substances
including water and vitamins. The respondents agree with the CA, however, and add that the
ordinance does not rest on a valid distinction because it has lacked scientific basis and has
ignored the classifications of pesticides observed by the FPA.

We partly agree with both parties.

In our view, the petitioners correctly argue that the rational basis approach appropriately applies
herein. Under the rational basis test, we shall: (1) discern the reasonable relationship between
the means and the purpose of the ordinance; and (2) examine whether the means or the
prohibition against aerial spraying is based on a substantial or reasonable distinction. A
reasonable classification includes all persons or things similarly situated with respect to the
purpose of the law.133chanrobleslaw

Applying the test, the established classification under Ordinance No. 0309-07 is to be viewed in
relation to the group of individuals similarly situated with respect to the avowed purpose. This
gives rise to two classes, namely: (1) the classification under Ordinance No. 0309-07
(legislative classification); and (2) the classification based on purpose (elimination of the
mischief). The legislative classification found in Section 4 of the ordinance refers to "all
agricultural entities" within Davao City. Meanwhile, the classification based on the purpose of
the ordinance cannot be easily discerned because the ordinance does not make any express or
implied reference to it. We have to search the voluminous records of this case to divine
the animus behind the action of the Sangguniang Panglungsod in prohibiting aerial spraying as
an agricultural activity. The effort has led uS to the following proposed resolution of the
Sangguniang Panglungsod,134viz.:ChanRoblesVirtualawlibrary

RESOLUTION NO. ____

Series of 2007
A RESOLUTION TO ENACT AN ORDINANCE BANNING AERIAL SPRAYING AS AN
AGRICULTURAL PRACTICE IN ALL AGRICULTURAL ENTITIES IN DAVAO CITY

WHEREAS, the City of Davao, with fertile lands and ideal climactic condition, hosts various
large farms planted with different crops;

WHEREAS, these farms, lay adjacent to other agricultural businesses and that residential areas
abuts these farm boundaries;

WHEREAS, aerial spraying as a mode of applying chemical substances such as fungicides and
pesticides is being used by investors/companies over large agricultural plantations in Davao
City;

WHEREAS, the Davao City watersheds and ground water sources, located within and adjacent
to Mount Apo may be affected by the aerial spraying of chemical substances on the agricultural
farms and plantations therein;

WHEREAS, the effects of aerial spraying are found to be detrimental to the health of the
residents of Davao City most especially the inhabitants nearby agricultural plantations practicing
aerials spraying;

WHEREAS, the unstable wind direction during the conduct of aerial spray application of these
chemical substances pose health hazards to people, animals, other crops and ground water
sources;

WHEREAS, in order to achieve sustainable development, politics must be based on the

Precautionary Principle. Environment measures must anticipate, prevent, and attack the causes
of environmental degradation. Where there are threats of serious, irreversible damage, lack of
scientific certainty should not be used as a reason for postponing measures to prevent
environmental degradation;

WHEREAS, it is the policy of the City of Davao to ensure the safety of its inhabitants from all
forms of hazards, especially if such hazards come from development activities that are
supposed to be beneficial to everybody;

WHEREAS, pesticides are by its nature poisonous, it is all the more dangerous when dispensed
aerially through aircraft because of unstable wind conditions which in turn makes aerial spray
drifting to unintended targets a commonplace.

WHEREAS, aerial spraying of pesticides is undeniably a nuisance.

WHEREAS, looking at the plight of the complainants and other stakeholders opposed to aerial
spraying, the issue of aerial spraying of pesticides is in all fours a nuisance. Given the vastness
of the reach of aerial spraying, the said form of dispensation falls into the category of a public
nuisance. Public nuisance is defined by the New Civil Code as one which affects a community
or neighborhood or any considerable number of persons, although the extent of the annoyance,
danger or damage upon individuals may be unequal.

WHEREAS, the General Welfare Clause of the Local Government Code empowers Local
Government Units to enact ordinances that provide for the health and safety, promote the
comfort and convenience of the City and the inhabitants thereof.

NOW THEREFORE, BE IT RESOLVED AS IT IS HEREBY RESOLVED, that for the health,

safety and peace of mind of all the inhabitants of Davao City, let an ordinance be enacted
banning aerial spraying as an agricultural practice in all agricultural entities in Davao City.

xxxx

The proposed resolution identified aerial spraying of pesticides as a nuisance because of the
unstable wind direction during the aerial application, which (1) could potentially contaminate the
Davao City watersheds and ground water sources; (2) was detrimental to the health of Davao
City residents, most especially those living in the. nearby plantations; and (3) posed a hazard to
animals and other crops. Plainly, the mischief that the prohibition sought to address was the
fungicide drift resulting from the aerial application; hence, the classification based on the intent
of the proposed ordinance covered all agricultural entities conducting aerial spraying of
fungicides that caused drift.

The assailed ordinance thus becomes riddled with several distinction issues.

A brief discussion on the occurrence of the drift that the ordinance seeks to address is
necessary.

Pesticide treatment is based on the use of different methods of application and

equipment,135 the choice of which methods depend largely on the objective of distributing the
correct dose to a defined target with the minimum of wastage due to "drift."136 The term "drift"
refers to the movement of airborne spray droplets, vapors, or dust particles away from the target
area during pesticide application.137 Inevitably, any method of application causes drift, which
may either be primary or secondary. As fittingly described by scholars:138

Primary drift is the off-site movement of spray droplets at, or very close to, the time of
application. For example, a field application using a boom in a gusty wind situation could easily
lead to a primary drift. Primary spray drift is not product specific, and the active ingredients do
not differ in their potential to drift. However, the type of formulation, surfactant, or other adjuvant
may affect spray drift potential.

Secondary drift is associated with pesticide vapor. Pesticide vapor drift is the movement of the
gas that forms when an active ingredient evaporates from plants, soil, or other surfaces. And
while vapor drift is an important issue, it only pertains to certain volatile products. Vapor drift and
other forms of secondary drift are product specific. Water-based sprays will volatize more
quickly than oil-based sprays. However, oil-based sprays can drift farther, especially above
95°F, because they are lighter.

Understandably, aerial drift occurs using any method of application, be it through airplanes,
ground sprayers, airblast sprayers or irrigation systems.139 Several factors contribute to the
occurrence of drift depending on the method of application, viz.:ChanRoblesVirtualawlibrary

AERIAL AIRBLAST GROUND CHEMIGATION

Droplet size Crop canopy Droplet size Application height
Application height Droplet size Boom height Wind speed
 Wind speed Wind speed Wind speed
Swath adjustment
Canopy
Boom length
Tank mix physical properties

Source: F.M. Fishel and J.A. Ferrell, "Managing Pesticide Drift," available
at http://edis.ifas.edu/pi232. citing Pesticide Notes, MSU Extension.

The four most common pesticide treatment methods adopted in Davao City are aerial, truck-
mounted boom, truck-mounted mechanical, and manual spraying.140 However, Ordinance No.
0309-07 imposes the prohibition only against aerial spraying.

Davao City justifies the prohibition against aerial spraying by insisting that the occurrence of drift
causes inconvenience and harm to the residents and degrades the environment. Given this
justification, does the ordinance satisfy the requirement that the classification must rest on
substantial distinction?

We answer in the negative.

The occurrence of pesticide drift is not limited to aerial spraying but results from the conduct of
any mode of pesticide application. Even manual spraying or truck-mounted boom spraying
produces drift that may bring about the same inconvenience, discomfort and alleged health risks
to the community and to the environment.141 A ban against aerial spraying does not weed out
the harm that the ordinance seeks to achieve.142 In the process, the ordinance suffers from
being "underinclusive" because the classification does not include all individuals tainted with the
same mischief that the law seeks to eliminate.143 A classification that is drastically underinclusive
with respect to the purpose or end appears as an irrational means to the legislative end
because it poorly serves the intended purpose of the law.144chanrobleslaw

The claim that aerial spraying produces more aerial drift cannot likewise be sustained in view of
the petitioners' failure to substantiate the same. The respondents have refuted this claim, and
have maintained that on the contrary, manual spraying produces more drift than aerial
treatment145 As such, the decision of prohibiting only aerial spraying is tainted with arbitrariness.

Aside from its being underinclusive, the assailed ordinance also tends to be "overinclusive"
because its .impending implementation will affect groups that have no relation to the
accomplishment of the legislative purpose. Its implementation will unnecessarily impose a
burden on a wider range of individuals than those included in the intended class based on the
purpose of the law.146chanrobleslaw

It can be noted that the imposition of the ban is too broad because the ordinance applies
irrespective of the substance to be aerially applied and irrespective of the agricultural activity to
be conducted. The respondents admit that they aerially treat their plantations not only with
pesticides but also vitamins and other substances. The imposition of the ban against aerial
spraying of substances other than fungicides and regardless of the agricultural activity being
performed becomes unreasonable inasmuch as it patently bears no relation to the purported
inconvenience, discomfort, health risk and environmental danger which the ordinance, seeks to
address. The burden now will become more onerous to various entities including the
respondents and even others with no connection whatsoever to the intended purpose of the
ordinance.

In this respect, the CA correctly observed:ChanRoblesVirtualawlibrary

Ordinance No. 0309-07 defines "aerial spraying" as the "application of substances through the
use of aircraft of any form which dispenses the substances in the air." Inevitably, the ban
imposed therein encompasses aerial application of practically all substances, not only
pesticides or fungicides but including water and all forms of chemicals, regardless of its
elements, composition, or degree of safety.

Going along with respondent-appellee's ratiocination that the prohibition in the Ordinance refers
to aerial spraying as a method of spraying pesticides or fungicides, there appears to be a need
to single out pesticides or fungicides in imposing such a ban because there is a striking
distinction between such chemicals and other substances (including water), particularly with
respect to its safety implications to the public welfare and ecology.

xxxx

We are, therefore, convinced that the total ban on aerial spraying runs afoul with the equal
protection clause because it does not classify which substances are prohibited from being
applied aerially even as reasonable distinctions should be made in terms of the hazards, safety
or beneficial effects of liquid substances to the public health, livelihood and the
environment.147chanroblesvirtuallawlibrary

We clarify that the CA did not thereby apply the strict scrutiny approach but only evaluated the
classification established by the ordinance in relation to the purpose. This is the essence of the
rational basis approach.

The petitioners should be made aware that the rational basis scrutiny is not based on a simple
means-purpose correlation; nor does the rational basis scrutiny automatically result in a
presumption of validity of the ordinance or deference to the wisdom of the local legislature.148 To
reiterate, aside from ascertaining that the means and purpose of the ordinance are reasonably
related, the classification should be based on a substantial distinction.

However, we do not subscribe to the respondents' position that there must be a distinction
based on the level of concentration or the classification imposed by the FPA on pesticides. This
strenuous requirement cannot be expected from a local government unit that should only be
concerned with general policies in local administration and should not be restricted by technical
concerns that are best left to agencies vested with the appropriate special competencies. The
disregard of the pesticide classification is not an equal protection issue but is more relevant in
another aspect of delegated police power that we consider to be more appropriate in a later
discussion.

The overinclusiveness of Ordinance No. 0309-07 may also be traced to its Section 6 by virtue of
its requirement for the maintenance of the 30- meter buffer zone. This requirement applies
regardless of the area of the agricultural landholding, geographical location, topography, crops
grown and other distinguishing characteristics that ideally should bear a reasonable relation to
the evil sought to be avoided. As earlier discussed, only large banana plantations could rely on
aerial technology because of the financial capital required therefor.
The establishment and maintenance of the buffer zone will become more burdensome to the
small agricultural landholders because: (1) they have to reserve the 30-meter belt surrounding
their property; (2) that will have to be identified through GPS; (3) the metes and bounds of the
buffer zone will have to be plotted in a survey plan for submission to the local government unit;
and (4) will be limited as to the crops that may be cultivated therein based on the mandate that
the zone shall be devoted to "diversified trees" taller than what are being grown therein.149 The
arbitrariness of Section 6 all the more becomes evident when the land is presently devoted to
the cultivation of root crops and vegetables, and trees or plants slightly taller than the root crops
and vegetables are then to be planted. It is seriously to be doubted whether such circumstance
will prevent the occurrence of the drift to the nearby residential areas.

Section 6 also subjects to the 30-meter buffer zone requirement agricultural entities engaging in
organic farming, and' do not contribute to the occurrence of pesticide drift. The classification
indisputably becomes arbitrary and whimsical.

A substantially overinclusive or underinclusive classification tends to undercut the governmental

claim that the classification serves legitimate political ends.150 Where overinclusiveness is the
problem, the vice is that the law has a greater discriminatory or burdensome effect than
necessary.151 In this light, we strike down Section 5 and Section 6 of Ordinance No. 0309-07 for
carrying an invidious classification, and for thereby violating the Equal Protection Clause.

The discriminatory nature of the ordinance can be seen from its policy as stated in its Section 2,
to wit:ChanRoblesVirtualawlibrary

Section 2. POLICY OF THE CITY. It shall be the policy of the City of Davao to eliminate the
method of aerial spraying as an agricultural practice in all agricultural activities by all entities
within Davao City.

Evidently, the ordinance discriminates against large farmholdings that are the only ideal venues
for the investment of machineries and equipment capable of aerial spraying. It effectively denies
the affected individuals the technology aimed at efficient and cost-effective operations and
cultivation not only of banana but of other crops as well. The prohibition against aerial spraying
will seriously hamper the operations of the banana plantations that depend on aerial technology
to arrest the spread of the Black Sigatoka disease and other menaces that threaten their
production and harvest. As earlier shown, the effect of the ban will not be limited to Davao City
in view of the significant contribution of banana export trading to the country's economy.

The discriminatory character of the ordinance makes it oppressive and unreasonable in light of
the existence and availability of more permissible and practical alternatives that will not
overburden the respondents and those dependent on their operations as well as those who
stand to be affected by the ordinance. In the view of Regional Director Roger C. Chio of DA
Regional Field Unit XI, the alleged harm caused by aerial spraying may be addressed by
following the GAP that the DA has been promoting among plantation operators. He explained
his view thusly:ChanRoblesVirtualawlibrary

The allegation that aerial spraying is hazardous to animal and human being remains an
allegation and assumptions until otherwise scientifically proven by concerned authorities and
agencies. This issue can be addressed by following Good Agricultural Practices, which DA is
promoting among fruit and vegetable growers/plantations. Any method of agri-chemical
application whether aerial or non-aerial if not properly done in accordance with established
procedures and code of good agricultural practices and if the chemical applicators and or
handlers lack of necessary competency, certainly it could be hazardous. For the assurance that
commercial applicators/aerial applicators possessed the competency and responsibility of
handling agri-chemical, such applicators are required under Article III, Paragraph 2 of FPA
Rules and Regulation No. 1 to secure license from FPA.

Furthermore users and applicators of agri-chemicals are also guided by Section 6 Paragraph 2
and 3 under column of Pesticides and Other agricultural Chemicals of PD 11445 which stated:
"FPA shall establish and enforce tolerance levels and good agricultural practices in raw
agricultural commodities; to restrict or ban the use of any chemical or the formulation of certain
pesticides in specific areas or during certain period upon evidence that the pesticide is eminent
[sic] hazards has caused, or is causing widespread serious damage to crops, fish, livestock or
to public health and environment."

Besides the aforecited policy, rules and regulation enforced by DA, there are other laws and
regulations protecting and preserving the environment. If the implementation and monitoring of
all these laws and regulation are closely coordinated with concerned LGUs, Gas and NGAs and
other private sectors, perhaps we can maintain a sound and health environment x x
x.152chanroblesvirtuallawlibrary

Indeed, based on the Summary Report on the Assessment and Factfinding Activities on the
Issue of Aerial Spraying in Banana Plantations,153 submitted by the fact-finding team organized
by Davao City, only three out of the 13 barangays consulted by the fact-finding team opposed
the conduct of aerial spraying; and of the three barangays, aerial spraying was conducted only
in Barangay Subasta. In fact, the fact-finding team found that the residents in those barangays
were generally in favor of the operations of the banana plantations, and did not oppose the
conduct of aerial spraying.

IV
The Precautionary Principle still requires scientific basis

The petitioners finally plead that the Court should look at the merits of the ordinance based on
the precautionary principle. They argue that under the precautionary principle, the City of Davao
is justified in enacting Ordinance No. 0309-07 in order to prevent harm to the environment and
human health despite the lack of scientific certainty.

The petitioners' plea and argument cannot be sustained.

The principle of precaution originated as a social planning principle in Germany. In the 1980s,
the Federal Republic of Germany used the Vorsogeprinzip ("foresight principle") to justify the
implementation of vigorous policies to tackle acid rain, global warming and pollution of the North
Sea.154 It has since emerged from a need to protect humans and the environment from
increasingly unpredictable, uncertain, and unquantifiable but possibly catastrophic risks such as
those associated with Genetically Modified Organisms and climate change,155 among others.
The oft-cited Principle 15 of the 1992 Rio Declaration on Environment and Development (1992
Rio Agenda), first embodied this principle, as follows:ChanRoblesVirtualawlibrary
Principle 15

In order to protect the environment, the precautionary approach shall be widely applied by
States according to their capabilities. Where there are threats of serious or irreversible damage,
lack of full scientific certainty shall not be used as a reason for postponing cost-effective
measures to prevent environmental degradation.

In this jurisdiction, the principle of precaution appearing in the Rules of Procedure for

Environmental Cases (A.M. No. 09-6-8-SC) involves matters of evidence in cases where there
is lack of full scientific certainty in establishing a causal link between human activity and
environmental effect.156 In such an event, the courts may construe a set of facts as warranting
either judicial action or inaction with the goal of preserving and protecting the
environment.157chanrobleslaw

It is notable, therefore, that the precautionary principle shall only be relevant if there is
concurrence of three elements, namely: uncertainty, threat of environmental damage and
serious or irreversible harm. In situations where the threat is relatively certain, or that the causal
link between an action and environmental damage can be established, or the probability of
occurrence can be calculated, only preventive, not precautionary measures, may be taken.
Neither will the precautionary principle apply if there is no indication of a threat of environmental
harm; or if the threatened harm is trivial or easily reversible.158chanrobleslaw

We cannot see the presence of all the elements. To begin with, there has been no scientific
study. Although the precautionary principle allows lack of full scientific certainty in establishing a
connection between the serious or irreversible harm and the human activity, its application is
still premised on empirical studies. Scientific analysis is still a necessary basis for effective
policy choices under the precautionary principle.159chanrobleslaw

Precaution is a risk management principle invoked after scientific inquiry takes place. This
scientific stage is often considered synonympus with risk assessment.160 As such, resort to the
principle shall not be based on anxiety or emotion, but from a rational decision rule, based in
ethics.161 As much as possible, a complete and objective scientific evaluation of the risk to the
environment or health should be conducted and made available to decision-makers for them to
choose the most appropriate course of action.162 Furthermore, the positive and negative effects
of an activity is also important in the application of the principle. The potential harm resulting
from certain activities should always be judged in view of the potential benefits they offer, while
the positive and negative effects of potential precautionary measures should be
considered.163chanrobleslaw

The only study conducted to validate the effects of aerial spraying appears to be the Summary
Report on the Assessment and Fact-Finding Activities on the Issue of Aerial Spraying in
Banana Plantations.164 Yet, the fact-finding team that generated the report was not a scientific
study that could justify the resort to the .precautionary principle. In fact, the Sangguniang Bayan
ignored the findings and conclusions of the fact-finding team that recommended only a
regulation, not a ban, against aerial spraying. The recommendation was in line with the
advocacy of judicious handling and application of chemical pesticides by the DOH-Center for
Health Development in the Davao Region in view of the scarcity of scientific studies to support
the ban against aerial spraying.165chanrobleslaw

We should not apply the precautionary approach in sustaining the ban against aerial spraying if
little or nothing is known of the exact or potential dangers that aerial spraying may bring to the
health of the residents within and near the plantations and to the integrity and balance of the
environment. It is dangerous to quickly presume that the effects of aerial spraying would be
adverse even in the absence of evidence. Accordingly, for lack of scientific data supporting a
ban on aerial spraying, Ordinance No. 0309-07 should be struck down for being unreasonable.

V
Ordinance No. 0309-07 is an ultra vires act

The Court further holds that in addition to its unconstitutionality for carrying an unwarranted
classification that contravenes the Equal Protection Clause, Ordinance No. 0309-07 suffers from
another legal infirmity.

The petitioners represent that Ordinance No. 0309-07 is a valid exercise of legislative and police
powers by the Sangguniang Bayan of Davao City pursuant to Section 458 in relation to Section
16 both of the Local Government Code. The respondents counter that Davao City thereby
disregarded the regulations implemented by the Fertilizer and Pesticide Authority (FPA),
including its identification and classification of safe pesticides and other agricultural chemicals.

We uphold the respondents.

An ordinance enjoys the presumption of validity on the basis that:ChanRoblesVirtualawlibrary

The action of the elected representatives of the people cannot be lightly set aside. The
councilors must, in the very nature of things, be familiar with the necessities of their particular
municipality and with all the facts and circumstances which surround the subject, and
necessities of their particular municipality and with all the facts and circumstances which
surround the subject, and necessitate action. The local legislative body, by enacting the
ordinance, has in effect given notice that the regulations are essential to the well-being of the
people.166chanroblesvirtuallawlibrary

Section 5(c) of the Local Government Code accords a liberal interpretation to its general welfare
provisions. The policy of liberal construction is consistent with the spirit of local autonomy that
endows local government units with sufficient power and discretion to accelerate their economic
development and uplift the quality of life for their constituents.

Verily, the Court has championed the cause of public welfare on several occasions. In so doing,
it has accorded liberality to the general welfare provisions of the Local Government Code by
upholding the validity of local ordinances enacted for the common good. For instance, in Social
Justice Society (SJS) v. Atienza, Jr.,167 the Court validated a zoning ordinance that reclassified
areas covered by a large oil depot from industrial to commercial in order to ensure the life,
health and property of the inhabitants residing within the periphery of the oil depot. Another
instance is Gancayco v. City Government of Quezon City,168 where the Court declared as valid a
city ordinance ordering the construction of arcades that would ensure the health and safety of
the city and its inhabitants, improvement of their morals, peace, good order, comfort and
convenience, as well as the promotion of their prosperity. Even in its early years, the Court
already extended liberality towards the exercise by the local government units; of their
legislative powers in order to promote the general welfare of their communities. This was
exemplified in United States v. Salaveria,169 wherein gambling was characterized as "an act
beyond the pale of good morals" that the local legislative council could validly suppress to
protect the well-being of its constituents; and in United States v. Abendan,170 whereby the right
of the then Municipality of Cebu to enact an ordinance relating to sanitation and public health
was upheld.

The power to legislate under the General Welfare Clause is not meant to be an invincible
authority. In fact, Salaveria and Abendan emphasized the reasonableness and consistency of
the exercise by the local government units with the laws or policies of the State.171 More
importantly, because the police power of the local government units flows from the express
delegation of the power by Congress, its exercise is to be construed in strictissimi juris. Any
doubt or ambiguity arising out of the terms used in granting the power should be construed
against the local legislative units.172 Judicial scrutiny comes into play whenever the exercise of
police power affects life, liberty or property.173 The presumption of validity and the policy of
liberality are not restraints on the power of judicial review in the face of questions about whether
an ordinance conforms with the Constitution, the laws or public policy, or if it is unreasonable,
oppressive, partial, discriminating or in derogation of a common right. The ordinance must pass
the test of constitutionality and the test of consistency with the prevailing laws.174chanrobleslaw

Although the Local Government Code vests the municipal corporations with sufficient power to
govern themselves and manage their affairs and activities, they definitely have no right to enact
ordinances dissonant with the State's laws and policy. The Local Government Code has been
fashioned to delineate the specific parameters and limitations to guide each local government
unit in exercising its delegated powers with the view of making the local government unit a fully
functioning subdivision of the State within the constitutional and statutory restraints.175 The Local
Government Code is not intended to vest in the local government unit the blanket authority to
legislate upon any subject that it finds proper to legislate upon in the guise of serving the
common good.

The function of pesticides control, regulation and development is within the jurisdiction of the
FPA under Presidential Decree No. 1144.176 The FPA was established in recognition of the need
for a technically oriented government entity177 that will protect the public from the risks inherent
in the use of pesticides.178 To perform its mandate, it was given under Section 6 of Presidential
Decree No. 1144 the following powers and functions with respect to pesticides and other
agricultural chemicals, viz.:ChanRoblesVirtualawlibrary

Section 6. Powers and functions. The FPA shall have jurisdiction, on over all existing handlers
of pesticides, fertilizers and other agricultural chemical inputs. The FPA shall have the following
powers and functions:

chanRoblesvirtualLawlibraryx x x x

III. Pesticides and Other Agricultural Chemicals

1. To determine specific uses or manners of use for each pesticide or pesticide formulation;

2. To establish and enforce levels and good agricultural practices for use of pesticides in raw
agricultural commodities;

3. To restrict or ban the use of any pesticide or the formulation of certain pesticides in specific
areas or during certain periods upon evidence that the pesticide is an imminent hazard, has
caused, or is causing widespread serious damage to crops, fish or livestock, or to public health
and environment;
xxxx

5. To inspect the establishment and premises of pesticide handlers to insure that industrial
health and safety rules and anti-pollution regulations are followed;

6. To enter and inspect farmers' fields to ensure that only the recommended pesticides are used
in specific crops in accordance with good agricultural practice;

x x x x (Emphasis supplied).

Evidently, the FPA was responsible for ensuring the compatibility between the usage and the
application of pesticides in agricultural activities and the demands for human health and
environmental safety. This responsibility includes not only the identification of safe and unsafe
pesticides, but also the prescription of the safe modes of application in keeping with the
standard of good agricultural practices.

On the other hand, the enumerated devolved functions to the local government units do not
include the regulation and control of pesticides and other agricultural chemicals.179 The non-
inclusion should preclude the Sangguniang Bayan of Davao City from enacting Ordinance No.
0309-07, for otherwise it would be arrogating unto itself the authority to prohibit the aerial
application of pesticides in derogation of the authority expressly vested in the FPA by
Presidential Decree No. 1144.

In enacting Ordinance No. 0309-07 without the inherent and explicit authority to do so, the City
of Davao performed an ultra vires act. As a local government unit, the City of Davao could act
only as an agent of Congress, and its every act should always conform to and reflect the will of
its principal.180 As clarified in Batangas CATV, Inc. v. Court of Appeals:181

[W]here the state legislature has made provision for the regulation of conduct, it has manifested
its intention that the subject matter shall be fully covered by the statute, and that a municipality,
under its general powers, cannot regulate the same conduct. In Keller vs. State, it was held that:
"Where there is no express power in the charter of a municipality authorizing it to adopt
ordinances regulating certain matters which are specifically covered by a general statute, a
municipal ordinance, insofar as it attempts to regulate the subject which is completely covered
by a general statute of the legislature, may be rendered invalid. x x x Where the subject is of
statewide concern, and the legislature has appropriated the field and declared the rule, its
declaration is binding throughout the State." A reason advanced for this view is that such
ordinances are in excess of the powers granted to the municipal corporation.

Since E.O. No. 205, a general law, mandates that the regulation of CATV operations shall be
exercised by the NTC, an LGU cannot enact an ordinance or approve a resolution in violation of
the said law.

It is a fundamental principle that municipal ordinances are inferior in status and subordinate to
the laws of the state. An ordinance in conflict with a state law of general character and statewide
application is universally held to be invalid. The principle is frequently expressed in the
declaration that municipal authorities, under a general grant of power, cannot adopt ordinances
which infringe the spirit of a state law or repugnant to the general policy of the state. In every
power to pass ordinances given to a municipality, there is an implied restriction that the
ordinances shall be consistent with the general law.182 (Emphasis ours)
For sure, every local government unit only derives its legislative authority from Congress. In no
instance can the local government unit rise above its source of authority. As such, its ordinance
cannot run against or contravene existing laws, precisely because its authority is only by virtue
of the valid delegation from Congress. As emphasized in City of Manila v. Laguio, Jr.:183

The requirement that the enactment must not violate existing law gives stress to the precept that
local government units are able to legislate only by virtue of their derivative legislative power, a
delegation of legislative power from the national legislature. The delegate cannot be superior to
the principal or exercise powers higher than those of the latter.

This relationship between the national legislature and the local government units has not been
enfeebled by the new provisions in the Constitution strengthening the policy of local autonomy.
The national legislature is still the principal of the local government units, which cannot defy its
will or modify or violate it.184chanroblesvirtuallawlibrary

Moreover, Ordinance No. 0309-07 proposes to prohibit an activity already covered by the
jurisdiction of the FPA, which has issued its own regulations under its Memorandum Circular
No. 02, Series of 2009, entitled Good Agricultural Practices for Aerial Spraying of Fungicide in
Banana Plantations.185 While Ordinance No. 0309-07 prohibits aerial spraying in banana
plantations within the City of Davao, Memorandum Circular No. 02 seeks to regulate the
conduct of aerial spraying in banana plantations186 pursuant to Section 6, Presidential Decree
No. 1144, and in conformity with the standard of Good Agricultural Practices (GAP).
Memorandum Circular No. 02 covers safety procedures,187 handling188 and post-
application,189 including the qualifications of applicators,190 storing of fungicides,191 safety and
equipment of plantation personnel,192 all of which are incompatible with the prohibition against
aerial spraying under Ordinance No. 0309-07.

Although Memorandum Circular No. 02 and Ordinance No. 0309-07 both require the
maintenance of the buffer zone, they differ as to their treatment and maintenance of the buffer
zone. Under Memorandum Circular No. 02, a 50-meter "no-spray boundary" buffer zone should
be observed by the spray pilots,193 and the observance of the zone should be recorded in the
Aerial Spray Final Report (ASFR) as a post-application safety measure.194 On the other hand,
Ordinance No. 0309-07 requires the maintenance of the 30-meter buffer zone to be planted with
diversified trees.195chanrobleslaw

Devoid of the specific delegation to its local legislative body, the City of Davao exceeded its
delegated authority to enact Ordinance No. 0309-07. Hence, Ordinance No. 0309-07 must be
struck down also for being an ultra vires act on the part of the Sangguniang Bayan of Davao
City.

We must emphasize that our ruling herein does not seek to deprive the LGUs their right to
regulate activities within their jurisdiction. They are empowered under Section 16 of the Local
Government Code to promote the general welfare of the people through regulatory, not
prohibitive, ordinances that conform with the policy directions of the National Government.
Ordinance No. 0309-07 failed to pass this test as it contravenes the specific regulatory policy on
aerial spraying in banana plantations on a nationwide scale of the National Government,
through the FPA.

Finally, the unconstitutionality of the ban renders nugatory Ordinance No. 0309-07 in its entirety.
Consequently, any discussion on the lack of the separability clause becomes entirely irrelevant.
WHEREFORE, the Court DENIES the consolidated petitions for review on certiorari for their
lack of merit; AFFIRMS the decision promulgated on January 9, 2009 in C.A.-G.R. CV No.
01389-MIN. declaring Ordinance No. 0309-07 UNCONSTITUTIONAL; PERMANENTLY
ENJOINS respondent City of Davao, and all persons or entities acting in its behalf or under its
authority, from enforcing and implementing Ordinance No. 0309-07; and ORDERS the
petitioners to pay the costs of suit.

G.R. Nos. 171947-48             December 18, 2008

METROPOLITAN MANILA DEVELOPMENT AUTHORITY, DEPARTMENT OF

ENVIRONMENT AND NATURAL RESOURCES, DEPARTMENT OF EDUCATION, CULTURE
AND SPORTS,1 DEPARTMENT OF HEALTH, DEPARTMENT OF AGRICULTURE,
DEPARTMENT OF PUBLIC WORKS AND HIGHWAYS, DEPARTMENT OF BUDGET AND
MANAGEMENT, PHILIPPINE COAST GUARD, PHILIPPINE NATIONAL POLICE MARITIME
GROUP, and DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT, petitioners,
vs.
CONCERNED RESIDENTS OF MANILA BAY, represented and joined by DIVINA V. ILAS,
SABINIANO ALBARRACIN, MANUEL SANTOS, JR., DINAH DELA PEÑA, PAUL DENNIS
QUINTERO, MA. VICTORIA LLENOS, DONNA CALOZA, FATIMA QUITAIN, VENICE
SEGARRA, FRITZIE TANGKIA, SARAH JOELLE LINTAG, HANNIBAL AUGUSTUS BOBIS,
FELIMON SANTIAGUEL, and JAIME AGUSTIN R. OPOSA, respondents.

DECISION

VELASCO, JR., J.:

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.2 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 petitioners, for the cleanup, rehabilitation, and protection
of the Manila Bay. Raffled to Branch 20 and docketed as Civil Case No. 1851-99 of the RTC,
the complaint alleged that the water quality of the Manila Bay had fallen way below the
allowable standards set by law, specifically Presidential Decree No. (PD) 1152 or the Philippine
Environment Code. This environmental aberration, the complaint stated, stemmed from:

x x x [The] reckless, wholesale, accumulated and ongoing acts of omission or commission [of
the defendants] resulting in the clear and present danger to public health and in the depletion
and contamination of the marine life of Manila Bay, [for which reason] ALL defendants must be
held jointly and/or solidarily liable and be collectively ordered to clean up Manila Bay and to
restore its water quality to class B waters fit for swimming, skin-diving, and other forms of
contact recreation.3

In their individual causes of action, respondents alleged that the continued neglect of petitioners
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;

(11) The Trust Doctrine and the Principle of Guardianship; and

(12) International Law

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.

The trial of the case started off with a hearing at the Manila Yacht Club followed by an ocular
inspection of the Manila Bay. Renato T. Cruz, the Chief of the Water Quality Management
Section, Environmental Management Bureau, Department of Environment and Natural
Resources (DENR), testifying for petitioners, stated that water samples collected from different
beaches around the Manila Bay showed that the amount of fecal coliform content ranged from
50,000 to 80,000 most probable number (MPN)/ml when what DENR Administrative Order No.
34-90 prescribed as a safe level for bathing and other forms of contact recreational activities, or
the "SB" level, is one not exceeding 200 MPN/100 ml.4

Rebecca de Vera, for Metropolitan Waterworks and Sewerage System (MWSS) and in behalf of
other petitioners, testified about the MWSS’ efforts to reduce pollution along the Manila Bay
through the Manila Second Sewerage Project. For its part, the Philippine Ports Authority (PPA)
presented, as part of its evidence, its memorandum circulars on the study being conducted on
ship-generated waste treatment and disposal, and its Linis Dagat (Clean the Ocean) project for
the cleaning of wastes accumulated or washed to shore.

The RTC Ordered Petitioners to Clean Up and Rehabilitate Manila Bay

On September 13, 2002, the RTC rendered a Decision5 in favor of respondents. The dispositive
portion reads:

WHEREFORE, finding merit in the complaint, judgment is hereby rendered ordering the
abovenamed defendant-government agencies, jointly and solidarily, to clean up and rehabilitate
Manila Bay and restore its waters to SB classification to make it fit for swimming, skin-diving and
other forms of contact recreation. To attain this, defendant-agencies, with defendant DENR as
the lead agency, are directed, within six (6) months from receipt hereof, to act and perform their
respective duties by devising a consolidated, coordinated and concerted scheme of action for
the rehabilitation and restoration of the bay.

In particular:

Defendant MWSS is directed to install, operate and maintain adequate [sewerage] treatment
facilities in strategic places under its jurisdiction and increase their capacities.

Defendant LWUA, to see to it that the water districts under its wings, provide, construct and
operate sewage facilities for the proper disposal of waste.
Defendant DENR, which is the lead agency in cleaning up Manila Bay, to install, operate and
maintain waste facilities to rid the bay of toxic and hazardous substances.

Defendant PPA, to prevent and also to treat the discharge not only of ship-generated wastes but
also of other solid and liquid wastes from docking vessels that contribute to the pollution of the
bay.

Defendant MMDA, to establish, operate and maintain an adequate and appropriate sanitary
landfill and/or adequate solid waste and liquid disposal as well as other alternative garbage
disposal system such as re-use or recycling of wastes.

Defendant DA, through the Bureau of Fisheries and Aquatic Resources, to revitalize the marine
life in Manila Bay and restock its waters with indigenous fish and other aquatic animals.

Defendant DBM, to provide and set aside an adequate budget solely for the purpose of cleaning
up and rehabilitation of Manila Bay.

Defendant DPWH, to remove and demolish structures and other nuisances that obstruct the
free flow of waters to the bay. These nuisances discharge solid and liquid wastes which
eventually end up in Manila Bay. As the construction and engineering arm of the government,
DPWH is ordered to actively participate in removing debris, such as carcass of sunken vessels,
and other non-biodegradable garbage in the bay.

Defendant DOH, to closely supervise and monitor the operations of septic and sludge
companies and require them to have proper facilities for the treatment and disposal of fecal
sludge and sewage coming from septic tanks.

Defendant DECS, to inculcate in the minds and hearts of the people through education the
importance of preserving and protecting the environment.

Defendant Philippine Coast Guard and the PNP Maritime Group, to protect at all costs the
Manila Bay from all forms of illegal fishing.

No pronouncement as to damages and costs.

SO ORDERED.

The MWSS, Local Water Utilities Administration (LWUA), and PPA filed before the Court of
Appeals (CA) individual Notices of Appeal which were eventually consolidated and docketed as
CA-G.R. CV No. 76528.

On the other hand, the DENR, Department of Public Works and Highways (DPWH),
Metropolitan Manila Development Authority (MMDA), Philippine Coast Guard (PCG), Philippine
National Police (PNP) Maritime Group, and five other executive departments and agencies filed
directly with this Court a petition for review under Rule 45. The Court, in a Resolution of
December 9, 2002, sent the said petition to the CA for consolidation with the consolidated
appeals of MWSS, LWUA, and PPA, docketed as CA-G.R. SP No. 74944.
Petitioners, before the CA, were one in arguing in the main that the pertinent provisions of the
Environment Code (PD 1152) relate only to the cleaning of specific pollution incidents and do
not cover cleaning in general. And apart from raising concerns about the lack of funds
appropriated for cleaning purposes, petitioners also asserted that the cleaning of the Manila Bay
is not a ministerial act which can be compelled by mandamus.

The CA Sustained the RTC

By a Decision6 of September 28, 2005, the CA denied petitioners’ appeal and affirmed the
Decision of the RTC in toto, stressing that the trial court’s decision did not require petitioners to
do tasks outside of their usual basic functions under existing laws.7

Petitioners are now before this Court praying for the allowance of their Rule 45 petition on the
following ground and supporting arguments:

THE [CA] DECIDED A QUESTION OF SUBSTANCE NOT HERETOFORE PASSED UPON BY

THE HONORABLE COURT, I.E., IT AFFIRMED THE TRIAL COURT’S DECISION
DECLARING THAT SECTION 20 OF [PD] 1152 REQUIRES CONCERNED GOVERNMENT
AGENCIES TO REMOVE ALL POLLUTANTS SPILLED AND DISCHARGED IN THE WATER
SUCH AS FECAL COLIFORMS.

ARGUMENTS

[SECTIONS] 17 AND 20 OF [PD] 1152 RELATE ONLY TO THE CLEANING OF SPECIFIC

POLLUTION INCIDENTS AND [DO] NOT COVER CLEANING IN GENERAL

II

THE CLEANING OR REHABILITATION OF THE MANILA BAY IS NOT A MINISTERIAL ACT

OF PETITIONERS THAT CAN BE COMPELLED BY MANDAMUS.

The issues before us are two-fold. First, do Sections 17 and 20 of PD 1152 under the
headings, Upgrading of Water Quality and Clean-up Operations, envisage a cleanup in general
or are they limited only to the cleanup of specific pollution incidents? And second, can
petitioners be compelled by mandamus to clean up and rehabilitate the Manila Bay?

On August 12, 2008, the Court conducted and heard the parties on oral arguments.

Our Ruling

We shall first dwell on the propriety of the issuance of mandamus under the premises.

The Cleaning or Rehabilitation of Manila Bay

Can be Compelled by Mandamus

Generally, the writ of mandamus lies to require the execution of a ministerial duty.8 A ministerial
duty is one that "requires neither the exercise of official discretion nor judgment."9 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."10 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. Atienza11 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
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. (Emphasis added.)

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 9003,12 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.13 A discretionary duty is one that "allows a person to
exercise judgment and choose to perform or not to perform."14 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. Consider:

(1) The DENR, under Executive Order No. (EO) 192,15 is the primary agency responsible for the
conservation, management, development, and proper use of the country’s environment and
natural resources. Sec. 19 of the Philippine Clean Water Act of 2004 (RA 9275), on the other
hand, designates the DENR as the primary government agency responsible for its enforcement
and implementation, more particularly over all aspects of water quality management. On water
pollution, the DENR, under the Act’s Sec. 19(k), exercises jurisdiction "over all aspects of water
pollution, determine[s] its location, magnitude, extent, severity, causes and effects and other
pertinent information on pollution, and [takes] measures, using available methods and
technologies, to prevent and abate such pollution."

The DENR, under RA 9275, is also tasked to prepare a National Water Quality Status Report,
an Integrated Water Quality Management Framework, and a 10-year Water Quality
Management Area Action Plan which is nationwide in scope covering the Manila Bay and
adjoining areas. Sec. 19 of RA 9275 provides:

Sec. 19 Lead Agency.––The [DENR] shall be the primary government agency responsible for
the implementation and enforcement of this Act x x x unless otherwise provided herein. As such,
it shall have the following functions, powers and responsibilities:

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 Management Framework within twelve (12) months
following the completion of the status report;

c) Prepare a ten (10) year Water Quality Management 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.

The DENR has prepared the status report for the period 2001 to 2005 and is in the process of
completing the preparation of the Integrated Water Quality Management Framework.16 Within
twelve (12) months thereafter, it has to submit a final Water Quality Management Area Action
Plan.17 Again, like the MMDA, the DENR should be made to accomplish the tasks assigned to it
under RA 9275.

Parenthetically, during the oral arguments, the DENR Secretary manifested that the DENR, with
the assistance of and in partnership with various government agencies and non-government
organizations, has completed, as of December 2005, the final draft of a comprehensive action
plan with estimated budget and time frame, denominated as Operation Plan for the Manila Bay
Coastal Strategy, for the rehabilitation, restoration, and rehabilitation of the Manila Bay.

The completion of the said action plan and even the implementation of some of its phases
should more than ever prod the concerned agencies to fast track what are assigned them under
existing laws.

(2) The MWSS, under Sec. 3 of RA 6234,18 is vested with jurisdiction, supervision, and control
over all waterworks and sewerage systems in the territory comprising what is now the cities of
Metro Manila and several towns of the provinces of Rizal and Cavite, and charged with the duty:

(g) To construct, maintain, and operate such sanitary sewerages as may be necessary for the
proper sanitation and other uses of the cities and towns comprising the System; x x x

(3) The LWUA under PD 198 has the power of supervision and control over local water districts.
It can prescribe the minimum standards and regulations for the operations of these districts and
shall monitor and evaluate local water standards. The LWUA can direct these districts to
construct, operate, and furnish facilities and services for the collection, treatment, and disposal
of sewerage, waste, and storm water. Additionally, under RA 9275, the LWUA, as attached
agency of the DPWH, is tasked with providing sewerage and sanitation facilities, inclusive of the
setting up of efficient and safe collection, treatment, and sewage disposal system in the different
parts of the country.19 In relation to the instant petition, the LWUA is mandated to provide
sewerage and sanitation facilities in Laguna, Cavite, Bulacan, Pampanga, and Bataan to
prevent pollution in the Manila Bay.

(4) The Department of Agriculture (DA), pursuant to the Administrative Code of 1987 (EO
292),20 is designated as the agency tasked to promulgate and enforce all laws and issuances
respecting the conservation and proper utilization of agricultural and fishery resources.
Furthermore, the DA, under the Philippine Fisheries Code of 1998 (RA 8550), is, in coordination
with local government units (LGUs) and other concerned sectors, in charge of establishing a
monitoring, control, and surveillance system to ensure that fisheries and aquatic resources in
Philippine waters are judiciously utilized and managed on a sustainable basis.21 Likewise under
RA 9275, the DA is charged with coordinating with the PCG and DENR for the enforcement of
water quality standards in marine waters.22 More specifically, its Bureau of Fisheries and
Aquatic Resources (BFAR) under Sec. 22(c) of RA 9275 shall primarily be responsible for the
prevention and control of water pollution for the development, management, and conservation of
the fisheries and aquatic resources.

(5) The DPWH, as the engineering and construction arm of the national government, is tasked
under EO 29223 to provide integrated planning, design, and construction services for, among
others, flood control and water resource development systems in accordance with national
development objectives and approved government plans and specifications.
In Metro Manila, however, the MMDA is authorized by Sec. 3(d), RA 7924 to perform metro-
wide services relating to "flood control and sewerage management which include the
formulation and implementation of policies, standards, programs and projects for an integrated
flood control, drainage and sewerage system."

On July 9, 2002, a Memorandum of Agreement was entered into between the DPWH and
MMDA, whereby MMDA was made the agency primarily responsible for flood control in Metro
Manila. For the rest of the country, DPWH shall remain as the implementing agency for flood
control services. The mandate of the MMDA and DPWH on flood control and drainage services
shall include the removal of structures, constructions, and encroachments built along rivers,
waterways, and esteros (drainages) in violation of RA 7279, PD 1067, and other pertinent laws.

(6) The PCG, in accordance with Sec. 5(p) of PD 601, or the Revised Coast Guard Law of 1974,
and Sec. 6 of PD 979,24 or the Marine Pollution Decree of 1976, shall have the primary
responsibility of enforcing laws, rules, and regulations governing marine pollution within the
territorial waters of the Philippines. It shall promulgate its own rules and regulations in
accordance with the national rules and policies set by the National Pollution Control
Commission upon consultation with the latter for the effective implementation and enforcement
of PD 979. It shall, under Sec. 4 of the law, 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.

(7) When RA 6975 or the Department of the Interior and Local Government (DILG) Act of 1990
was signed into law on December 13, 1990, the PNP Maritime Group was tasked to "perform all
police functions over the Philippine territorial waters and rivers." Under Sec. 86, RA 6975, the
police functions of the PCG shall be taken over by the PNP when the latter acquires the
capability to perform such functions. Since the PNP Maritime Group has not yet attained the
capability to assume and perform the police functions of PCG over marine pollution, the PCG
and PNP Maritime Group shall coordinate with regard to the enforcement of laws, rules, and
regulations governing marine pollution within the territorial waters of the Philippines. This was
made clear in Sec. 124, RA 8550 or the Philippine Fisheries Code of 1998, in which both the
PCG and PNP Maritime Group were authorized to enforce said law and other fishery laws,
rules, and regulations.25
(8) In accordance with Sec. 2 of EO 513, the PPA is mandated "to establish, develop, regulate,
manage and operate a rationalized national port system in support of trade and national
development."26 Moreover, Sec. 6-c of EO 513 states that the PPA has police authority within
the ports administered by it as may be necessary to carry out its powers and functions and
attain its purposes and objectives, without prejudice to the exercise of the functions of the
Bureau of Customs and other law enforcement bodies within the area. Such police authority
shall include the following:

xxxx

b) To regulate the entry to, exit from, and movement within the port, of persons and vehicles, as
well as movement within the port of watercraft.27

Lastly, as a member of the International Marine Organization and a signatory to the International
Convention for the Prevention of Pollution from Ships, as amended by MARPOL 73/78,28 the
Philippines, through the PPA, must ensure the provision of adequate reception facilities at ports
and terminals for the reception of sewage from the ships docking in Philippine ports. Thus, the
PPA is tasked to adopt such measures as are necessary to prevent the discharge and dumping
of solid and liquid wastes and other ship-generated wastes into the Manila Bay waters from
vessels docked at ports and apprehend the violators. When the vessels are not docked at ports
but within Philippine territorial waters, it is the PCG and PNP Maritime Group that have
jurisdiction over said vessels.

(9) The MMDA, as earlier indicated, is duty-bound to put up and maintain adequate sanitary
landfill and solid waste and liquid disposal system as well as other alternative garbage disposal
systems. It is primarily responsible for the implementation and enforcement of the provisions of
RA 9003, which would necessary include its penal provisions, within its area of jurisdiction.29

Among the prohibited acts under Sec. 48, Chapter VI of RA 9003 that are frequently violated are
dumping of waste matters in public places, such as roads, canals or esteros, open burning of
solid waste, squatting in open dumps and landfills, open dumping, burying of biodegradable or
non- biodegradable materials in flood-prone areas, establishment or operation of open dumps
as enjoined in RA 9003, and operation of waste management facilities without an environmental
compliance certificate.

Under Sec. 28 of the Urban Development and Housing Act of 1992 (RA 7279), eviction or
demolition may be allowed "when persons or entities occupy danger areas such as esteros,
railroad tracks, garbage dumps, riverbanks, shorelines, waterways, and other public places
such as sidewalks, roads, parks and playgrounds." The MMDA, as lead agency, in coordination
with the DPWH, LGUs, and concerned agencies, can dismantle and remove all structures,
constructions, and other encroachments built in breach of RA 7279 and other pertinent laws
along the rivers, waterways, and esteros in Metro Manila. With respect to rivers, waterways,
and esteros in Bulacan, Bataan, Pampanga, Cavite, and Laguna that discharge wastewater
directly or eventually into the Manila Bay, the DILG shall direct the concerned LGUs to
implement the demolition and removal of such structures, constructions, and other
encroachments built in violation of RA 7279 and other applicable laws in coordination with the
DPWH and concerned agencies.

(10) The Department of Health (DOH), under Article 76 of PD 1067 (the Water Code), is tasked
to promulgate rules and regulations for the establishment of waste disposal areas that affect the
source of a water supply or a reservoir for domestic or municipal use. And under Sec. 8 of RA
9275, the DOH, in coordination with the DENR, DPWH, and other concerned agencies, shall
formulate guidelines and standards for the collection, treatment, and disposal of sewage and the
establishment and operation of a centralized sewage treatment system. In areas not considered
as highly urbanized cities, septage or a mix sewerage-septage management system shall be
employed.

In accordance with Sec. 7230 of PD 856, the Code of Sanitation of the Philippines, and Sec.
5.1.131 of Chapter XVII of its implementing rules, the DOH is also ordered to ensure the
regulation and monitoring of the proper disposal of wastes by private sludge companies through
the strict enforcement of the requirement to obtain an environmental sanitation clearance of
sludge collection treatment and disposal before these companies are issued their environmental
sanitation permit.

(11) The Department of Education (DepEd), under the Philippine Environment Code (PD 1152),
is mandated to integrate subjects on environmental education in its school curricula at all
levels.32 Under Sec. 118 of RA 8550, the DepEd, in collaboration with the DA, Commission on
Higher Education, and Philippine Information Agency, shall launch and pursue a nationwide
educational campaign to promote the development, management, conservation, and proper use
of the environment. Under the Ecological Solid Waste Management Act (RA 9003), on the other
hand, it is directed to strengthen the integration of environmental concerns in school curricula at
all levels, with an emphasis on waste management principles.33

(12) The Department of Budget and Management (DBM) is tasked under Sec. 2, Title XVII of
the Administrative Code of 1987 to ensure the efficient and sound utilization of government
funds and revenues so as to effectively achieve the country’s development objectives.34

One of the country’s development objectives is enshrined in RA 9275 or the Philippine Clean
Water Act of 2004. This law stresses that the State shall 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 waters. It also provides that it is the policy of the government, among
others, to streamline processes and procedures in the prevention, control, and abatement of
pollution mechanisms for the protection of water resources; to promote environmental strategies
and use of appropriate economic instruments and of control mechanisms for the protection of
water resources; to formulate a holistic national program of water quality management that
recognizes that issues related to this management cannot be separated from concerns about
water sources and ecological protection, water supply, public health, and quality of life; and to
provide a comprehensive management program for water pollution focusing on pollution
prevention.

Thus, the DBM shall then endeavor to provide an adequate budget to attain the noble objectives
of RA 9275 in line with the country’s development objectives.

All told, the aforementioned enabling laws and issuances are in themselves clear, categorical,
and complete as to what are the obligations and mandate of each agency/petitioner under the
law. We need not belabor the issue that their tasks include the cleanup of the Manila Bay.

Now, as to the crux of the petition. Do Secs. 17 and 20 of the Environment Code encompass
the cleanup of water pollution in general, not just specific pollution incidents?
Secs. 17 and 20 of the Environment Code
Include Cleaning in General

The disputed sections are quoted as follows:

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.

When the Clean Water Act (RA 9275) took effect, its Sec. 16 on the subject, o, amended the
counterpart provision (Sec. 20) of the Environment Code (PD 1152). Sec. 17 of PD 1152
continues, however, to be operational.

The amendatory Sec. 16 of RA 9275 reads:

SEC. 16. Cleanup Operations.––Notwithstanding the provisions of Sections 15 and 26 hereof,

any person who causes pollution in or pollutes 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: Provided, That in the event emergency cleanup operations are
necessary and the polluter fails to immediately undertake the same, the [DENR] in coordination
with other government agencies concerned, shall undertake containment, removal and cleanup
operations. Expenses incurred in said operations shall be reimbursed by the persons found to
have caused such pollution under proper administrative determination x x x. Reimbursements of
the cost incurred shall be made to the Water Quality Management Fund or to such other funds
where said disbursements were sourced.

As may be noted, the amendment to Sec. 20 of the Environment Code is more apparent than
real since the amendment, insofar as it is relevant to this case, merely consists in the
designation of the DENR as lead agency in the cleanup operations.

Petitioners contend at every turn that Secs. 17 and 20 of the Environment Code concern
themselves only with the matter of cleaning up in specific pollution incidents, as opposed to
cleanup in general. They aver that the twin provisions would have to be read alongside the
succeeding Sec. 62(g) and (h), which defines the terms "cleanup operations" and "accidental
spills," as follows:

g. Clean-up Operations [refer] to activities conducted in removing the pollutants discharged or

spilled in water to restore it to pre-spill condition.

h. Accidental Spills [refer] to spills of oil or other hazardous substances in water that result from
accidents such as collisions and groundings.
Petitioners proffer the argument that Secs. 17 and 20 of PD 1152 merely direct the government
agencies concerned to undertake containment, removal, and cleaning operations of a specific
polluted portion or portions of the body of water concerned. They maintain that the application of
said Sec. 20 is limited only to "water pollution incidents," which are situations that presuppose
the occurrence of specific, isolated pollution events requiring the corresponding containment,
removal, and cleaning operations. Pushing the point further, they argue that the aforequoted
Sec. 62(g) requires "cleanup operations" to restore the body of water to pre-spill condition,
which means that there must have been a specific incident of either intentional or accidental
spillage of oil or other hazardous substances, as mentioned in Sec. 62(h).

As a counterpoint, respondents argue that petitioners erroneously read Sec. 62(g) as delimiting
the application of Sec. 20 to the containment, removal, and cleanup operations for accidental
spills only. Contrary to petitioners’ posture, respondents assert that Sec. 62(g), in fact, even
expanded the coverage of Sec. 20. Respondents explain that without its Sec. 62(g), PD 1152
may have indeed covered only pollution accumulating from the day-to-day operations of
businesses around the Manila Bay and other sources of pollution that slowly accumulated in the
bay. Respondents, however, emphasize that Sec. 62(g), far from being a delimiting provision, in
fact even enlarged the operational scope of Sec. 20, by including accidental spills as among the
water pollution incidents contemplated in Sec. 17 in relation to Sec. 20 of PD 1152.

To respondents, petitioners’ parochial view on environmental issues, coupled with their narrow
reading of their respective mandated roles, has contributed to the worsening water quality of the
Manila Bay. Assuming, respondents assert, that petitioners are correct in saying that the
cleanup coverage of Sec. 20 of PD 1152 is constricted by the definition of the phrase "cleanup
operations" embodied in Sec. 62(g), Sec. 17 is not hobbled by such limiting definition. As
pointed out, the phrases "cleanup operations" and "accidental spills" do not appear in said Sec.
17, not even in the chapter where said section is found.

Respondents are correct. For one thing, said Sec. 17 does not in any way state that the
government agencies concerned ought to confine themselves to the containment, removal, and
cleaning operations when a specific pollution incident occurs. On the contrary, Sec. 17 requires
them to act even in the absence of a specific pollution incident, as long as water quality "has
deteriorated to a degree where its state will adversely affect its best usage." This section, to
stress, commands concerned government agencies, when appropriate, "to take such measures
as may be necessary to meet the prescribed water quality standards." In fine, the underlying
duty to upgrade the quality of water is not conditional on the occurrence of any pollution
incident.

For another, a perusal of Sec. 20 of the Environment Code, as couched, indicates that it is
properly applicable to a specific situation in which the pollution is caused by polluters who fail to
clean up the mess they left behind. In such instance, the concerned government agencies shall
undertake the cleanup work for the polluters’ account. Petitioners’ assertion, that they have to
perform cleanup operations in the Manila Bay only when there is a water pollution incident and
the erring polluters do not undertake the containment, removal, and cleanup operations, is quite
off mark. As earlier discussed, the complementary Sec. 17 of the Environment Code comes into
play and the specific duties of the agencies to clean up come in even if there are no pollution
incidents staring at them. Petitioners, thus, cannot plausibly invoke and hide behind Sec. 20 of
PD 1152 or Sec. 16 of RA 9275 on the pretext that their cleanup mandate depends on the
happening of a specific pollution incident. In this regard, what the CA said with respect to the
impasse over Secs. 17 and 20 of PD 1152 is at once valid as it is practical. The appellate court
wrote: "PD 1152 aims to introduce a comprehensive program of environmental protection and
management. This is better served by making Secs. 17 & 20 of general application rather than
limiting them to specific pollution incidents."35

Granting arguendo that petitioners’ position thus described vis-à-vis the implementation of Sec.

20 is correct, they seem to have overlooked the fact that the pollution of the Manila Bay is of
such magnitude and scope that it is well-nigh impossible to draw the line between a specific and
a general pollution incident. And such impossibility extends to pinpointing with reasonable
certainty who the polluters are. We note that Sec. 20 of PD 1152 mentions "water pollution
incidents" which may be caused by polluters in the waters of the Manila Bay itself or by polluters
in adjoining lands and in water bodies or waterways that empty into the bay. Sec. 16 of RA
9275, on the other hand, specifically adverts to "any person who causes pollution in or pollutes
water bodies," which may refer to an individual or an establishment that pollutes the land mass
near the Manila Bay or the waterways, such that the contaminants eventually end up in the bay.
In this situation, the water pollution incidents are so numerous and involve nameless and
faceless polluters that they can validly be categorized as beyond the specific pollution incident
level.

Not to be ignored of course is the reality that the government agencies concerned are so
undermanned that it would be almost impossible to apprehend the numerous polluters of the
Manila Bay. It may perhaps not be amiss to say that the apprehension, if any, of the Manila Bay
polluters has been few and far between. Hence, practically nobody has been required to
contain, remove, or clean up a given water pollution incident. In this kind of setting, it behooves
the Government to step in and undertake cleanup operations. Thus, Sec. 16 of RA 9275,
previously Sec. 20 of PD 1152, covers for all intents and purposes a general cleanup situation.

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. It thus behooves the
Court to put the heads of the petitioner-department-agencies and the bureaus and offices under
them on continuing notice about, and to enjoin them to perform, their mandates and duties
towards cleaning up the Manila Bay and preserving the quality of its water to the ideal level.
Under what other judicial discipline describes as "continuing mandamus,"36 the Court may,
under extraordinary circumstances, issue directives with the end in view of ensuring that its
decision would not be set to naught by administrative inaction or indifference. 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.37

The Court can take judicial notice of the presence of shanties and other unauthorized structures
which do not have septic tanks along the Pasig-Marikina-San Juan Rivers, the National Capital
Region (NCR) (Parañaque-Zapote, Las Piñas) Rivers, the Navotas-Malabon-Tullahan-
Tenejeros Rivers, the Meycuayan-Marilao-Obando (Bulacan) Rivers, the Talisay (Bataan) River,
the Imus (Cavite) River, the Laguna De Bay, and other minor rivers and connecting waterways,
river banks, and esteros which discharge their waters, with all the accompanying filth, dirt, and
garbage, into the major rivers and eventually the Manila Bay. If there is one factor responsible
for the pollution of the major river systems and the Manila Bay, these unauthorized structures
would be on top of the list. And if the issue of illegal or unauthorized structures is not seriously
addressed with sustained resolve, then practically all efforts to cleanse these important bodies
of water would be for naught. The DENR Secretary said as much.38

Giving urgent dimension to the necessity of removing these illegal structures is Art. 51 of PD
1067 or the Water Code,39 which prohibits the building of structures within a given length along
banks of rivers and other waterways. Art. 51 reads:

The banks of rivers and streams and the shores of the seas and lakes throughout their
entire length and within a zone of three (3) meters in urban areas, twenty (20) meters in
agricultural areas and forty (40) meters in forest areas, along their margins, are subject to the
easement of public use in the interest of recreation, navigation, floatage, fishing and
salvage. No person shall be allowed to stay in this zone longer than what is necessary for
recreation, navigation, floatage, fishing or salvage or to build structures of any kind.
(Emphasis added.)

Judicial notice may likewise be taken of factories and other industrial establishments standing
along or near the banks of the Pasig River, other major rivers, and connecting waterways. But
while they may not be treated as unauthorized constructions, some of these establishments
undoubtedly contribute to the pollution of the Pasig River and waterways. The DILG and the
concerned LGUs, have, accordingly, the duty to see to it that non-complying industrial
establishments set up, within a reasonable period, the necessary waste water treatment
facilities and infrastructure to prevent their industrial discharge, including their sewage waters,
from flowing into the Pasig River, other major rivers, and connecting waterways. After such
period, non-complying establishments shall be shut down or asked to transfer their operations.

At this juncture, and if only to dramatize the urgency of the need for petitioners-agencies to
comply with their statutory tasks, we cite the Asian Development Bank-commissioned study on
the garbage problem in Metro Manila, the results of which are embodied in the The Garbage
Book. As there reported, the garbage crisis in the metropolitan area is as alarming as it is
shocking. Some highlights of the report:

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 understatement.

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.40

Given the above perspective, sufficient sanitary landfills should now more than ever be
established as prescribed by the Ecological Solid Waste Management Act (RA 9003). Particular
note should be taken of the blatant violations by some LGUs and possibly the MMDA of Sec.
37, reproduced below:
Sec. 37. Prohibition against the Use of Open Dumps for Solid Waste.––No open dumps shall be
established and operated, nor any practice or disposal of solid waste by any person, including
LGUs which [constitute] the use of open dumps for solid waste, be allowed after the effectivity of
this Act: Provided, further that no controlled dumps shall be allowed (5) years following the
effectivity of this Act. (Emphasis added.)

RA 9003 took effect on February 15, 2001 and the adverted grace period of five (5) years which
ended on February 21, 2006 has come and gone, but no single sanitary landfill which strictly
complies with the prescribed standards under RA 9003 has yet been set up.

In addition, there are rampant and repeated violations of Sec. 48 of RA 9003, like littering,
dumping of waste matters in roads, canals, esteros, and other public places, operation of open
dumps, open burning of solid waste, and the like. Some sludge companies which do not have
proper disposal facilities simply discharge sludge into the Metro Manila sewerage system that
ends up in the Manila Bay. Equally unabated are violations of Sec. 27 of RA 9275, which
enjoins the pollution of water bodies, groundwater pollution, disposal of infectious wastes from
vessels, and unauthorized transport or dumping into sea waters of sewage or solid waste and of
Secs. 4 and 102 of RA 8550 which proscribes the introduction by human or machine of
substances to the aquatic environment including "dumping/disposal of waste and other marine
litters, discharge of petroleum or residual products of petroleum of carbonaceous
materials/substances [and other] radioactive, noxious or harmful liquid, gaseous or solid
substances, from any water, land or air transport or other human-made structure."

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.

RA 9003 is a sweeping piece of legislation enacted to radically transform and improve waste
management. It implements Sec. 16, Art. II of the 1987 Constitution, which explicitly 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.
So it was that in Oposa v. Factoran, Jr. the 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 implications.41 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. Anything less would be a betrayal of the trust reposed in them.

WHEREFORE, the petition is DENIED. The September 28, 2005 Decision of the CA in CA-G.R.
CV No. 76528 and SP No. 74944 and the September 13, 2002 Decision of the RTC in Civil
Case No. 1851-99 are AFFIRMED but with MODIFICATIONS in view of subsequent
developments or supervening events in the case. The fallo of the RTC Decision shall now read:

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.

In particular:

(1) 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 Operational Plan 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 meetings with concerned government departments and agencies to ensure
the successful implementation of the aforesaid plan of action in accordance with its indicated
completion schedules.

(2) Pursuant to Title XII (Local Government) of the Administrative Code of 1987 and Sec. 25 of
the Local Government Code of 1991,42 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 (Parañaque-Zapote, Las Piñas) Rivers, the Navotas-Malabon-Tullahan-
Tenejeros Rivers, the Meycauayan-Marilao-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.
(3) As mandated by Sec. 8 of RA 9275,43 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.

(4) Pursuant to RA 9275,44 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.

(5) Pursuant to Sec. 65 of RA 8550,45 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.

(6) 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.

(7) Pursuant to Secs. 2 and 6-c of EO 51346 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 the
Manila Bay waters from vessels docked at ports and apprehend the violators.

(8) 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
encroachments established or built in violation of RA 7279, and other applicable laws along the
Pasig-Marikina-San Juan Rivers, the NCR (Parañaque-Zapote, Las Piñas) Rivers, the Navotas-
Malabon-Tullahan-Tenejeros Rivers, and connecting waterways and esteros in Metro Manila.
The DPWH, as the principal implementor 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
encroachments 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 9003,47 Sec. 27 of RA 9275 (the Clean Water Act), and other existing
laws on pollution.

(9) 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.

(10) Pursuant to Sec. 53 of PD 1152,48 Sec. 118 of RA 8550, and Sec. 56 of RA 9003,49 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.

(11) The DBM shall consider incorporating an adequate budget in the General Appropriations
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.

(12) 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.

No costs.

G.R. No. 2869            March 25, 1907

MATEO CARIÑO, petitioner-appellant,
vs.
THE INSULAR GOVERNMENT, respondent-appellee.

Coudert Brothers for appellant.

Office of the Solicitor-General Araneta for appellee.

ARELLANO, C.J.:

Mateo Cariño, the appellant herein, on the 23d of February, 1904, filed his petition in the Court
of Land Registration praying that there be granted to him title to a parcel of land consisting of 40
hectares, 1 are, and 13 centares, and situated in the town of Baguio, Province of Benguet,
together with a house erected thereon and constructed of wood and roofed with rimo, and
bounded as follows: On the north, in lines running 1,048 metes and 20 decimeters with the
lands of Sepa Cariño, H. Phelps Whitmarsh, and Calsi; on the east, in lines running 991 meters
and 50 decimeters with the land of Kuidno, Esteban Gonzales, and of the Civil Government; on
the south, in lines of 115 meters and 60 decimeters, with the lands of Talaca; and on the west,
in lines running 982 meters and 20 decimeters, with the lands of Sisco Cariño and
Mayengmeng.
By order of the court the hearing of this petition, No. 561, and that of Antonio Rebollo and
Vicente Valpiedad filed under No. 834, were heard together for the reason that the latter petition
claimed a small portion of land included in the parcel set out in the former petition.

The Insular Government opposed the granting of these petitions, alleging that the whole parcel
of land is public property of the Government and that the same was never acquired in any
manner or through any title of egresion from the State.

After trial, and the hearing of documentary and oral proof, the court of Land Registration
rendered its judgment in these terms:

Therefore the court finds that Cariño and his predecessors have not possessed exclusively and
adversely any part of the said property prior to the date on which Cariño constructed the house
now there — that is to say, for the years 1897 and 1898, and Cariño held possession for some
years afterwards of but a part of the property to which he claims title. Both petitions are
dismissed and the property in question is adjudged to be public land. (Bill of exceptions, p. 15.)

The conclusions arrived at the set forth in definite terms in the decision of the court below are
the following:

From the testimony given by Cariño as well as from that of several of the witnesses for the
Government it is deduced, that in or about the year 1884 Cariño erected and utilized as a
domicile a house on the property situated to the north of that property now in question, property
which, according to the plan attached to expediente No. 561, appears to be property belonging
to Donaldson Sim; that during the year 1893 Cariño sold said house to one Cristobal Ramos,
who in turn sold the same to Donaldson Sim, moving to and living on the adjoining property,
which appears on the plan aforesaid to be the property of H. Phelps Whitmarsh, a place where
the father and the grandfather of his wife, that is to say, Ortega and Minse, had lived . . ..

In or about the years 1898 Cariño abandoned the property of Whitmarsh and located on the
property described in the plan attached to expediente No. 561, having constructed a house
thereon in which he now lives, and which house is situated in the center of the property, as is
indicated on the plan; and since which time he has undoubtedly occupied some portion of the
property now claimed by him. (Bill of exceptions, pp. 11 and 12.)

1. Therefore it is evident that this court can not decree the registration of all of the superficial
extension of the land described in the petition and as appears on the plan filed herein, such
extension containing 40 hectares, 1 are, and 13 centares, inasmuch as the documentary
evidence accompanying the petition is conclusive proof against the petitioners; this
documentary proof consists of a possessory information under date of March 7, 1901, and
registered on the 11th day of the same month and year; and, according to such possessory
information, the land therein described contains an extension of only 28 hectares limited by "the
country road to the barrio of Pias," a road appearing on the plan now presented and cutting the
land, as might be said, in half, or running through its center from north to south, a considerable
extension of land remaining on the other side of the said road, the west side, and which could
not have been included in the possessory information mentioned.

2. As has been shown during the trial of this case, this land, of which mention is made in said
possessory information, and upon which is situated the house now actually occupied by the
petitioner, all of which is set forth as argument as to the possession in the judgment, is "used for
pasture and sowing," and belongs to the class called public lands.

3. Under the express provisions of law, a parcel of land, being of common origin, presumptively
belonged to the State during its sovereignty, and, in order to perfect the legitimate acquisition of
such land by private persons, it was necessary that the possession of the same pass from the
State. And there is no evidence or proof of title of egresion of this land from the domain of the
Spanish Government, nor is there any possessory information equivalent to title
by composicion or under agreement. 4, The possessory information filed herein is not the title to
property authorized in substitution for that of adjustment by the royal decree of February 13,
1894, this being the last law or legal disposition of the former sovereignty applicable to the
present subject-matter of common lands: First, for the reason that the land referred to herein is
not covered nor does it come within any one of the three conditions required by article 19 of the
said royal decree, to wit, that the land has been in an uninterrupted state of cultivation during a
period of six years last past; or that the same has been possessed without interruption during a
period of twelve years and has been in a state of cultivation up to the date of the information
and during the three years immediately preceding such information; or that such land had been
possessed openly without interruption during a period of thirty or more years, notwithstanding
the land had not been cultivated; nor is it necessary to refer to the testimony given by the two
witnesses to the possessory information for the following reason: Second, because the
possessory information authorized by said royal decree or last legal disposition of the Spanish
Government, as title or for the purpose of acquiring actual proprietary right, equivalent to that of
adjustment with the Spanish Government and required and necessary at all times until the
publication of said royal decree was limited in time to one year, in accordance with article 21,
which is as follows: " A period of one year, not to be extended, is allowed to verify the
possessory informations which are referred to in articles 19 and 20. After the expiration of this
period of the right of the cultivators and persons in possession to obtain gratuitous title thereto
lapses and the land together with full possession reverts to the state, or, as the case may be, to
the community, and the said possessors and cultivators or their assigns would simply have
rights under universal or general title of average in the event that the land is sold within a period
of five years immediately following the cancellation. The possessors not included under this
chapter can only acquire by time the ownership and title to unappropriated or royal lands in
accordance with common law."

5. In accordance with the preceding provisions, the right that remained to Cariño, if it be certain
that he was the true possessor of the land in question, was the right of average in case the
Government or State could have sold the same within the period of five years immediately
following for example, if the denouncement of purchase had been carried out by Felipe Zafra or
any other person, as appears from the record of the trial of the case. Aside from this right, in
such event, his possession as attested in the possessory information herein could not, in
accordance with common law, go to show any right of ownership until after the expiration of
twenty years from the expiration of twenty years from the verification and registry of the same in
conformity with the provisions of article 393 of the Mortgage Law and other conditions prescribe
by this law.

6. The right of possession in accordance with common law — that is to say, civil law — remains
at all times subordinate to the Spanish administrative law, inasmuch as it could only be of force
when pertaining to royal transferable or alienable lands, which condition and the determination
thereof is reversed to the government, which classified and designated the royal alienable lands
for the purpose of distinguishing them from those lands strictly public, and from forestry lands
which could at no time pass to private ownership nor be acquired through time even after the
said royal decree of February 13, 1894.

7. The advent of the new sovereignty necessarily brought a new method of dealing with lands
and particularly as to the classification and manner of transfer and acquisition of royal or
common lands then appropriated, which were thenceforth merely called public lands, the
alienation of which was reserved to the Government, in accordance with section 12 and 13 of
the act of Congress of July 1, 1902,1 and in conformity with other laws enacted under this act of
Congress by the Philippine Commission prescribing rules for the execution thereof, one of which
is Act No. 648,2 herein mentioned by the petitioner, in connection with Act No. 627,3 which
appears to be the law upon which the petition herein is founded.

8. Section 6 of Act No. 627 admits prescription, in accordance with the provisions contained in
Act No. 190, as a basis for obtaining the right of ownership. "The petitioners claims title under
the period of prescription of ten years established by that act, as well as by reason of his
occupancy and use thereof from time immemorial." (Allegation 1.) But said act admits such
prescription for the purpose of obtaining title and ownership to lands "not exceeding more
that sixteen hectares in extent." (Sec. 6 of said act.) The land claimed by Cariño is 40 hectares
in extent, if we take into consideration his petition, or an extension of 28 hectares, according to
the possessory information, the only thing that can be considered. Therefore, it follows that the
judgment denying the petition herein and now appealed from was strictly in accordance with the
law invoked herein.

9. And of the 28 hectares of land as set out in the possessory information, one part of same,
according to the testimony of Cariño, belongs to Vicente Valpiedad, the extent of which is not
determined. From all of which it follows that the precise extent has not been determined in the
trial of this case on which judgment might be based in the event that the judgment and title be
declared in favor of the petitioner, Mateo Cariño. And we should not lose sight of the fact that,
considering the intention of Congress in granting ownership and title to 16 hectares, that Mateo
Cariño and his children have already exceeded such amount in various acquirements of lands,
all of which is shown in different cases decided by the said Court of Land Registration,
donations or gifts of land that could only have been made efficacious as to the conveyance
thereof with the assistance of these new laws.

By reason of the findings set forth it is clearly seen that the court below did not err:

1. In finding that Mateo Cariño and those from whom he claims his right had not possessed and
claimed as owners the lands in question since time immemorial;

2. In finding that the land in question did not belong to the petitioner, but that, on the contrary, it
was the property of the Government. (Allegation 21.)

Wherefore, the judgment appealed from is affirmed with the costs of this instance against the
appellant. After the expiration of twenty days from the notification of this decision let judgment
be entered in accordance herewith, and ten days thereafter let the case be remanded to the
court from whence it came for proper action. So ordered.

Torres, Mapa, Willard, and Tracey, JJ., concur.

Johnson, J., reserves his vote.
G.R. No. 135385               December 6, 2000

ISAGANI CRUZ and CESAR EUROPA, petitioners,

vs.
SECRETARY OF ENVIRONMENT AND NATURAL RESOURCES, SECRETARY OF
BUDGET AND MANAGEMENT and CHAIRMAN and COMMISSIONERS OF THE NATIONAL
COMMISSION ON INDIGENOUS PEOPLES, respondents.
HON. JUAN M .FLAVIER, HON. PONCIANO BENNAGEN, BAYANI ASCARRAGA, EDTAMI
MANSAYANGAN, BASILIO WANDAG, EVELYN DUNUAN, YAOM TUGAS, ALFREMO
CARPIANO, LIBERATO A. GABIN, MATERNIDAD M. COLAS, NARCISA M. DALUPINES,
BAI KIRAM-CONNIE SATURNO, BAE MLOMO-BEATRIZ T. ABASALA, DATU
BALITUNGTUNG-ANTONIO D. LUMANDONG, DATU MANTUMUKAW TEOFISTO
SABASALES, DATU EDUAARDO BANDA, DATU JOEL UNAD, DATU RAMON BAYAAN,
TIMUAY JOSE ANOY, TIMUAY MACARIO D. SALACAO, TIMUAY EDWIN B. ENDING,
DATU SAHAMPONG MALANAW VI, DATU BEN PENDAO CABIGON, BAI NANAPNAY-LIZA
SAWAY, BAY INAY DAYA-MELINDA S. REYMUNDO, BAI TINANGHAGA HELINITA T.
PANGAN, DATU MAKAPUKAW ADOLINO L. SAWAY, DATU MAUDAYAW-CRISPEN
SAWAY, VICKY MAKAY, LOURDES D. AMOS, GILBERT P. HOGGANG, TERESA GASPAR,
MANUEL S. ONALAN, MIA GRACE L. GIRON, ROSEMARIE G. PE, BENITO CARINO,
JOSEPH JUDE CARANTES, LYNETTE CARANTES-VIVAL, LANGLEY SEGUNDO, SATUR
S. BUGNAY, CARLING DOMULOT, ANDRES MENDIOGRIN, LEOPOLDO ABUGAN,
VIRGILIO CAYETANO, CONCHITA G. DESCAGA, LEVY ESTEVES, ODETTE G. ESTEVEZ,
RODOLFO C. AGUILAR, MAURO VALONES, PEPE H. ATONG, OFELIA T. DAVI,
PERFECTO B. GUINOSAO, WALTER N. TIMOL, MANUEL T. SELEN, OSCAR DALUNHAY,
RICO O. SULATAN, RAFFY MALINDA, ALFREDO ABILLANOS, JESSIE ANDILAB,
MIRLANDO H. MANGKULINTAS, SAMIE SATURNO, ROMEO A. LINDAHAY, ROEL S.
MANSANG-CAGAN, PAQUITO S. LIESES, FILIPE G. SAWAY, HERMINIA S. SAWAY,
JULIUS S. SAWAY, LEONARDA SAWAY, JIMMY UGYUB, SALVADOR TIONGSON,
VENANCIO APANG, MADION MALID, SUKIM MALID, NENENG MALID, MANGKATADONG
AUGUSTO DIANO, JOSEPHINE M. ALBESO, MORENO MALID, MARIO MANGCAL, FELAY
DIAMILING, SALOME P. SARZA, FELIPE P. BAGON, SAMMY SALNUNGAN, ANTONIO D.
EMBA, NORMA MAPANSAGONOS, ROMEO SALIGA, SR., JERSON P. GERADA, RENATO
T. BAGON, JR., SARING MASALONG, SOLEDAD M. GERARDA, ELIZABETH L. MENDI,
MORANTE S. TIWAN, DANILO M. MALUDAO, MINORS MARICEL MALID, represented by
her father CORNELIO MALID, MARCELINO M. LADRA, represented by her father MONICO
D. LADRA, JENNYLYN MALID, represented by her father TONY MALID, ARIEL M.
EVANGELISTA, represented by her mother LINAY BALBUENA, EDWARD M. EMUY, SR.,
SUSAN BOLANIO, OND, PULA BATO B'LAAN TRIBAL FARMER'S ASSOCIATION, INTER-
PEOPLE'S EXCHANGE, INC. and GREEN FORUM-WESTERN VISAYAS, intervenors.
COMMISSION ON HUMAN RIGHTS, intervenor.
IKALAHAN INDIGENOUS PEOPLE and HARIBON FOUNDATION FOR THE
CONSERVATION OF NATURAL RESOURCES, INC., intervenor.
RESOLUTION

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).

In its resolution of September 29, 1998, the Court required respondents to comment.1 In
compliance, respondents Chairperson and Commissioners of the National Commission on
Indigenous Peoples (NCIP), the government agency created under the IPRA to implement its
provisions, filed on October 13, 1998 their Comment to the Petition, in which they defend the
constitutionality of the IPRA and pray that the petition be dismissed for lack of merit.

On October 19, 1998, respondents Secretary of the Department of Environment and Natural
Resources (DENR) and Secretary of the Department of Budget and Management (DBM) filed
through the Solicitor General a consolidated Comment. The Solicitor General is of the view that
the IPRA is partly unconstitutional on the ground that it grants ownership over natural resources
to indigenous peoples and prays that the petition be granted in part.

On November 10, 1998, a group of intervenors, composed of Sen. Juan Flavier, one of the
authors of the IPRA, Mr. Ponciano Bennagen, a member of the 1986 Constitutional
Commission, and the leaders and members of 112 groups of indigenous peoples (Flavier, et.
al), filed their Motion for Leave to Intervene. They join the NCIP in defending the constitutionality
of IPRA and praying for the dismissal of the petition.

On March 22, 1999, the Commission on Human Rights (CHR) likewise filed a Motion to
Intervene and/or to Appear as Amicus Curiae. The CHR asserts that IPRA is an expression of
the principle of parens patriae and that the State has the responsibility to protect and guarantee
the rights of those who are at a serious disadvantage like indigenous peoples. For this reason it
prays that the petition be dismissed.

On March 23, 1999, another group, composed of the Ikalahan Indigenous People and the
Haribon Foundation for the Conservation of Natural Resources, Inc. (Haribon, et al.), filed a
motion to Intervene with attached Comment-in-Intervention. They agree with the NCIP and
Flavier, et al. that IPRA is consistent with the Constitution and pray that the petition for
prohibition and mandamus be dismissed.

The motions for intervention of the aforesaid groups and organizations were granted.

Oral arguments were heard on April 13, 1999. Thereafter, the parties and intervenors filed their
respective memoranda in which they reiterate the arguments adduced in their earlier pleadings
and during the hearing.

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:
"(1) Section 3(a) which defines the extent and coverage of ancestral domains, and Section 3(b)
which, in turn, defines ancestral lands;

"(2) Section 5, in relation to section 3(a), which provides that ancestral domains including
inalienable public lands, bodies of water, mineral and other resources found within ancestral
domains are private but community property of the indigenous peoples;

"(3) Section 6 in relation to section 3(a) and 3(b) which defines the composition of ancestral
domains and ancestral lands;

"(4) Section 7 which recognizes and enumerates the rights of the indigenous peoples over the
ancestral domains;

(5) Section 8 which recognizes and enumerates the rights of the indigenous peoples over the
ancestral lands;

"(6) Section 57 which provides for priority rights of the indigenous peoples in the harvesting,
extraction, development or exploration of minerals and other natural resources within the areas
claimed to be their ancestral domains, and the right to enter into agreements with
nonindigenous peoples for the development and utilization of natural resources therein for a
period not exceeding 25 years, renewable for not more than 25 years; and

"(7) Section 58 which gives the indigenous peoples the responsibility to maintain, develop,
protect and conserve the ancestral domains and portions thereof which are found to be
necessary for critical watersheds, mangroves, wildlife sanctuaries, wilderness, protected areas,
forest cover or reforestation."2

Petitioners also content 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.3

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.4

These provisions are:

"(1) sections 51 to 53 and 59 which detail the process of delineation and recognition of ancestral
domains and which vest on the NCIP the sole authority to delineate ancestral domains and
ancestral lands;

"(2) Section 52[i] which provides that upon certification by the NCIP that a particular area is an
ancestral domain and upon notification to the following officials, namely, the Secretary of
Environment and Natural Resources, Secretary of Interior and Local Governments, Secretary of
Justice and Commissioner of the National Development Corporation, the jurisdiction of said
officials over said area terminates;
"(3) Section 63 which provides the customary law, traditions and practices of indigenous
peoples shall be applied first with respect to property rights, claims of ownership, hereditary
succession and settlement of land disputes, and that any doubt or ambiguity in the interpretation
thereof shall be resolved in favor of the indigenous peoples;

"(4) Section 65 which states that customary laws and practices shall be used to resolve disputes
involving indigenous peoples; and

"(5) Section 66 which vests on the NCIP the jurisdiction over all claims and disputes involving
rights of the indigenous peoples."5

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.6

Petitioners pray for the following:

"(1) A declaration that Sections 3, 5, 6, 7, 8, 52[I], 57, 58, 59, 63, 65 and 66 and other related
provisions of R.A. 8371 are unconstitutional and invalid;

"(2) The issuance of a writ of prohibition directing the Chairperson and Commissioners of the
NCIP to cease and desist from implementing the assailed provisions of R.A. 8371 and its
Implementing Rules;

"(3) The issuance of a writ of prohibition directing the Secretary of the Department of
Environment and Natural Resources to cease and desist from implementing Department of
Environment and Natural Resources Circular No. 2, series of 1998;

"(4) The issuance of a writ of prohibition directing the Secretary of Budget and Management to
cease and desist from disbursing public funds for the implementation of the assailed provisions
of R.A. 8371; and

"(5) The issuance of a writ of mandamus commanding the Secretary of Environment and
Natural Resources to comply with his duty of carrying out the State’s constitutional mandate to
control and supervise the exploration, development, utilization and conservation of Philippine
natural resources."7

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 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.

Attached hereto and made integral parts thereof are the separate opinions of Justices Puno,
Vitug, Kapunan, Mendoza, and Panganiban.

SO ORDERED.

G.R. No. 180771               April 21, 2015

RESIDENT MARINE MAMMALS OF THE PROTECTED SEASCAPE TAÑON STRAIT, e.g.,

TOOTHED WHALES, DOLPHINS, PORPOISES, AND OTHER CETACEAN SPECIES, Joined
in and Represented herein by Human Beings Gloria Estenzo Ramos and Rose-Liza
Eisma-Osorio, In Their Capacity as Legal Guardians of the Lesser Life-Forms and as
Responsible Stewards of God's Creations, Petitioners,
vs.
SECRETARY ANGELO REYES, in his capacity as Secretary of the Department of Energy
(DOE), SECRETARY JOSE L. ATIENZA, in his capacity as Secretary of the Department of
Environment and Natural Resources (DENR), LEONARDO R. SIBBALUCA, DENR
Regional Director-Region VII and in his capacity as Chairperson of the Tañon Strait
Protected Seascape Management Board, Bureau of Fisheries and Aquatic Resources
(BFAR), DIRECTOR MALCOLM J. SARMIENTO, JR., BFAR Regional Director for Region
VII ANDRES M. BOJOS, JAPAN PETROLEUM EXPLORATION CO., LTD. (JAPEX), as
represented by its Philippine Agent, SUPPLY OILFIELD SERVICES, INC. Respondents.

x-----------------------x

G.R. No. 181527

CENTRAL VISAYAS FISHERFOLK DEVELOPMENT CENTER (FIDEC), CERILO D.

ENGARCIAL, RAMON YANONG, FRANCISCO LABID, in their personal capacity and as
representatives of the SUBSISTENCE FISHERFOLKS OF THE MUNICIPALITIES OF
ALOGUINSAN AND PINAMUNGAJAN, CEBU, AND THEIR FAMILIES, AND THE PRESENT
AND FUTURE GENERATIONS OF FILIPINOS WHOSE RIGHTS ARE SIMILARLY
AFFECTED, Petitioners,
vs.
SECRETARY ANGELO REYES, in his capacity as Secretary of the Department of Energy
(DOE), JOSE L. ATIENZA, in his capacity as Secretary of the Department of Environment
and Natural Resources (DENR), LEONARDO R. SIBBALUCA, in his capacity as DENR
Regional Director-Region VII and as Chairperson of the Tañon Strait Protected Seascape
Management Board, ALAN ARRANGUEZ, in his capacity as Director - Environmental
Management Bureau-Region VII, DOE Regional Director for Region VIII1 ANTONIO
LABIOS, JAPAN PETROLEUM EXPLORATION CO., LTD. (JAPEX), as represented by its
Philippine Agent, SUPPLY OILFIELD SERVICES, INC., Respondents.

CONCURRING OPINION

"Until one has loved an animal,

a part of one 's soul remains unawakened."

Anatole France

LEONEN, J.:

I concur in the result, with the following additional reasons.

In G.R. No. 180771, petitioners Resident Marine Mammals allegedly bring their case in their
personal capacity, alleging that they stand to benefit or be injured from the judgment on the
issues. The human petitioners implead themselves in a representative capacity "as legal
guardians of the lesser life-forms and as responsible stewards of God's Creations."1 They use
Oposa v. Factoran, Jr.2 as basis for their claim, asserting their right to enforce international and
domestic environmental laws enacted for their benefit under the concept of stipulation pour
autrui.3 As the representatives of Resident Marine Mammals, the human petitioners assert that
they have the obligation to build awareness among the affected residents of Tañon Strait as well
as to protect the environment, especially in light of the government's failure, as primary steward,
to do its duty under the doctrine of public trust.4

Resident Marine Mammals and the human petitioners also assert that through this case, this
court will have the opportunity to lower the threshold for locus standi as an exercise of
"epistolary jurisdiction."5

The zeal of the human petitioners to pursue their desire to protect the environment and to
continue to define environmental rights in the context of actual cases is commendable.
However, the space for legal creativity usually required for advocacy of issues of the public
interest is not so unlimited that it should be allowed to undermine the other values protected by
current substantive and procedural laws. Even rules of procedure as currently formulated set
the balance between competing interests. We cannot abandon these rules when the necessity
is not clearly and convincingly presented.
The human petitioners, in G.R. No. 180771, want us to create substantive and procedural rights
for animals through their allegation that they can speak for them. Obviously, we are asked to
accept the premises that (a) they were chosen by the Resident Marine Mammals of Tañon
Strait; (b) they were chosen by a representative group of all the species of the Resident Marine
Mammals; (c) they were able to communicate with them; and (d) they received clear consent
from their animal principals that they would wish to use human legal institutions to pursue their
interests. Alternatively, they ask us to acknowledge through judicial notice that the interests that
they, the human petitioners, assert are identical to what the Resident Marine Mammals would
assert had they been humans and the legal strategies that they invoked are the strategies that
they agree with.

In the alternative, they want us to accept through judicial notice that there is a relationship of
guardianship between them and all the resident mammals in the affected ecology.

Fundamental judicial doctrines that may significantly change substantive and procedural law
cannot be founded on feigned representation.

Instead, I agree that the human petitioners should only speak for themselves and already have
legal standing to sue with respect to the issue raised in their pleading. The rules on standing
have already been liberalized to take into consideration the difficulties in the assertion of
environmental rights. When standing becomes too liberal, this can be the occasion for abuse.

II

Rule 3, Section 1 of the 1997 Rules of Civil Procedure, in part, provides:

SECTION 1. Who may be parties; plaintiff and defendant. - Only natural or juridical persons, or
entities authorized by law may be parties in a civil action.

The Rules provide that parties may only be natural or juridical persons or entities that may be
authorized by statute to be parties in a civil action.

Basic is the concept of natural and juridical persons in our Civil Code:

ARTICLE 37. Juridical capacity, which is the fitness to be the subject of legal relations, is
inherent in every natural person and is lost only through death. Capacity to act, which is the
power to do acts with legal effect, is acquired and may be lost.

Article 40 further defines natural persons in the following manner:

ARTICLE 40. Birth determines personality; but the conceived child shall be considered born for
all purposes that are favorable to it, provided it be born later with the conditions specified 'in the
following article.

Article 44, on the other hand, enumerates the concept of a juridical person:

ARTICLE 44. The following are juridical persons:

(1) The State and its political subdivisions;

(2) Other corporations, institutions and entities for public interest or purpose, created by law;
their personality begins as soon as they have been constituted according to law;

(3) Corporations, partnerships and associations for private interest or purpose to which the law
grants a juridical personality, separate and distinct from that of each shareholder, partner or
member.

Petitioners in G.R. No. 180771 implicitly suggest that we amend, rather than simply construe,
the provisions of the Rules of Court as well as substantive law to accommodate Resident
Marine Mammals or animals. This we cannot do.

Rule 3, Section 2 of the 1997 Rules of Civil Procedure further defines real party in interest:

SEC. 2. Parties in interest.-A real party in interest is the party who stands to be benefited or
injured by the judgment in the suit, or the party entitled to the avails of the suit. Unless otherwise
authorized by law or these Rules, every action must be prosecuted or defended in the name of
the real party in interest. (2a)6

A litigant who stands to benefit or sustain an injury from the judgment of a case is a real party in
interest.7 When a case is brought to the courts, the real party in interest must show that another
party's act or omission has caused a direct injury, making his or her interest both material and
based on an enforceable legal right.8

Representatives as parties, on the other hand, are parties acting in representation of the real
party in interest, as defined in Rule 3, Section 3 of the 1997 Rules of Civil Procedure:

SEC. 3. Representatives as parties. - Where the action is allowed to be prosecuted or defended

by a representative or someone acting in a fiduciary capacity, the beneficiary shall be included
in the title of the case and shall be deemed to be the real party in interest. A representative may
be a trustee of an express rust, a guardian, an executor or administrator, or a party authorized
by law or these Rules. An agent acting in his own name and for the benefit of an undisclosed
principal may sue or be sued without joining the principal except when the contract involves
things belonging to the principal.(3a)9

The rule is two-pronged. First, it defines .a representative as a party who is not bound to directly
or actually benefit or suffer from the judgment, but instead brings a case in favor of an identified
real party in interest.10 The representative is an outsider to the cause of action. Second, the rule
provides a list of who may be considered as "representatives." It is not an exhaustive list, but
the rule limits the coverage only to those authorized by law or the Rules of Court.11

These requirements should apply even in cases involving the environment, which means that
for the Petition of the human petitioners to prosper, they must show that (a) the Resident Marine
Mammals are real parties in interest; and (b) that the human petitioners are authorized by law or
the Rules to act in a representative capacity.

The Resident Marine Mammals are comprised of "toothed whales, dolphins, porpoises, and
other cetacean species inhabiting Tañon Strait."12 While relatively new in Philippine jurisdiction,
the issue of whether animals have legal standing before courts has been the subject of
academic discourse in light of the emergence of animal and environmental rights.
In the United States, anim4l rights advocates have managed to establish a system which Hogan
explains as the "guardianship model for nonhuman animals":13

Despite Animal Lovers, there exists a well-established system by which nonhuman animals may
obtain judicial review to enforce their statutory rights and protections: guardianships. With court
approval, animal advocacy organizations may bring suit on behalf of nonhuman animals in the
same way court-appointed guardians bring suit on behalf of mentally-challenged humans who
possess an enforceable right but lack the ability to enforce it themselves.

In the controversial but pivotal Should Trees Have Standing?-Toward Legal Rights for Natural
Objects, Christopher D. Stone asserts that the environment should possess the right to seek
judicial redress even though it is incapable of representing itself. While asserting the rights of

speechless entities such as the environment or nonhuman animals certainly poses legitimate
challenges - such as identifying the proper spokesman -the American legal system is already
well-equipped with a reliable mechanism by which nonhumans may obtain standing via a
judicially established guardianship. Stone notes that other speechless - and nonhuman - entities
such as corporations, states, estates, and municipalities have standing to bring suit on their own
behalf. There is little reason to fear abuses under this regime as procedures for removal and
substitution, avoiding conflicts of interest, and termination of a guardianship are well
established.

In fact, the opinion in Animal Lovers suggests that such an arrangement is indeed possible. The
court indicated that AL VA might have obtained standing in its own right if it had an established
history of dedication to the cause of the humane treatment of animals. It noted that the Fund for
Animals had standing and indicated that another more well-known advocacy organization might
have had standing as well. The court further concluded that an organization's standing is more
than a derivative of its history, but history is a relevant consideration where organizations are
not well-established prior to commencing legal action. ALVA was not the proper plaintiff
because it could not identify previous activities demonstrating its recognized activism for and
commitment to the dispute independent of its desire to pursue legal action. The court's analysis
suggests that a qualified organization with a demonstrated commitment to a cause could indeed
bring suit on behalf of the speechless in the form of a court-sanctioned guardianship.

This Comment advocates a shift in contemporary standing doctrine to empower non-profit

organizations with an established history of dedication to the cause and relevant expertise to
serve as official guardians ad !item on behalf of nonhuman animals interests. The American
legal system has numerous mechanisms for representing the rights and interests of
nonhumans; any challenges inherent in extending these pre-existing mechanisms to nonhuman
animals are minimal compared to an interest in the proper administration of justice. To
adequately protect the statutory rights of nonhuman animals, the legal system must recognize
those statutory rights independent of humans and provide a viable means of enforcement.
Moreover, the idea of a guardianship for speechless plaintiffs is not new and has been urged on
behalf of the natural environment. 'Such a model is even more compelling as applied to
nonhuman animals, because they are sentient beings with the ability to feel pain and exercise
rational thought. Thus, animals are qualitatively different from other legally protected
nonhumans and therefore have interests deserving direct legal protection.

Furthermore, the difficulty of enforcing the statutory rights of nonhuman animals threatens the
integrity of the federal statutes designed to protect them, essentially rendering them
meaningless. Sensing that laws protecting nonhuman animals would be difficult to enforce,
Congress provided for citizen suit provisions: the most well-known example is found in the
Endangered Species Act (ESA). Such provisions are evidence of legislative intent to encourage
civic participation on behalf of nonhuman animals. Our law of standing should reflect this intent
and its implication that humans are suitable representatives of the natural environment, which
includes nonhuman animals.14 (Emphasis supplied, citation omitted)

When a court allows guardianship as a basis of representation, animals are considered as

similarly situated as individuals who have enforceable rights but, for a legitimate reason (e.g.,
cognitive disability), are unable to bring suit for themselves. They are also similar to entities that
by their very nature are incapable of speaking for themselves (e.g., corporations, states, and
others).

In our jurisdiction, persons and entities are recognized both in law and the Rules of Court as
having standing to sue and, therefore, may be properly represented as real parties in interest.
The same cannot be said about animals.

Animals play an important role in households, communities, and the environment. While we, as
humans, may feel the need to nurture and protect them, we cannot go as far as saying we
represent their best interests and can, therefore, speak for them before the courts. As humans,
we cannot be so arrogant as to argue that we know the suffering of animals and that we know
what remedy they need in the face of an injury.

Even in Hogan's discussion, she points out that in a case before the United States District Court
for the Central District of California, Animal Lovers Volunteer Ass'n v. Weinberger,15 the court
held that an emotional response to what humans perceive to be an injury inflicted on an animal
is not within the "zone-of-interest" protected by law.16 Such sympathy cannot stand independent
of or as a substitute for an actual injury suffered by the claimant.17 The ability to represent
animals was further limited in that case by the need to prove "genuine dedication" to asserting
and protecting animal rights:

What ultimately proved fatal to ALVA 's claim, however, was the court's assertion that standing
doctrine further required ALVA to differentiate its genuine dedication to the humane treatment of
animals from the general disdain for animal cruelty shared by the public at large. In doing so,
the court found ALVA 's asserted organizational injury to be abstract and thus relegated ALVA
to the ranks of the "concerned bystander. "

....

In fact, the opinion in Animal Lovers suggests that such an arrangement is indeed possible. The
court indicated that ALVA might have obtained standing in its own right if it had an established
history of dedication to the cause of the humane treatment of animals. It noted that the Fund for
Animals had standing and indicated that another more well-known advocacy organization might
have had standing as well. The court further concluded that an organization's standing is more
than a derivative of its history, but history is a relevant consideration where organizations are
not well-established prior to commencing legal action. ALVA was not the proper plaintiff
because it could not identify previous activities demonstrating its recognized activism for and
commitment to the dispute independent of its desire to pursue legal action. The court's analysis
suggests that a qualified organization with a demonstrated commitment to a cause could indeed
bring suit on behalf of the speechless in the form of a court-sanctioned
guardianship.18 (Emphasis supplied, citation omitted)

What may be argued as being parallel to this concept of guardianship is the principle of human
stewardship over the environment in a citizen suit under the Rules of Procedure for
Environmental Cases. A citizen suit allows any Filipino to act as a representative of a party who
has enforceable rights under environmental laws before Philippine courts, and is defined in
Section 5: .

SEC. 5. Citizen suit. - Any Filipino citizen in representation of others, including minors or
generations yet unborn, may file an action to enforce rights or obligations under environmental
laws. Upon the filing of a citizen suit, the court shall issue an order which shall contain a brief
description of the cause of action and the reliefs prayed for, requiring all interested parties to
manifest their interest to intervene in the case within fifteen (15) days from notice thereof. The
plaintiff may publish the order once in a newspaper of a general circulation in the Philippines or
furnish all affected barangays copies of said order.

There is no valid reason in law or the practical requirements of this case to implead and feign
representation on behalf of animals. To have done so betrays a very anthropocentric view of
environmental advocacy. There is no way that we, humans, can claim to speak for animals let
alone present that they would wish to use our court system, which is designed to ensure that
humans seriously carry their responsibility including ensuring a viable ecology for themselves,
which of course includes compassion for all living things.

Our rules on standing are sufficient and need not be further relaxed.

In Arigo v. Swift,19 I posed the possibility of further reviewing the broad interpretation we have
given to the rule on standing. While representatives are not required to establish direct injury on
their part, they should only be allowed to represent after complying with the following: [I]t is
imperative for them to indicate with certainty the injured parties on whose behalf they bring the
suit. Furthermore, the interest of those they represent must be based upon concrete legal rights.
It is not sufficient to draw out a perceived interest from a general, nebulous idea of a potential
"injury."20

I reiterate my position in Arigo v. Swift and in Paje v. Casiño21 regarding this rule alongside the
appreciation of legal standing in Oposa v. Factoran22 for environmental cases. In Arigo, I opined
that procedural liberality, especially in cases brought by representatives, should be used with
great caution:

Perhaps it is time to revisit the ruling in Oposa v. Factoran.

That case was significant in that, at that time, there was need to call attention to environmental
concerns in light of emerging international legal principles. While "intergenerational
responsibility" is a noble principle, it should not be used to obtain judgments that would preclude
future generations from making their own assessment based on their actual concerns. The
present generation must restrain itself from assuming that it can speak best for those who will
exist at a different time, under a different set of circumstances. In essence, the unbridled resort
to representative suit will inevitably result in preventing future generations from protecting their
own rights and pursuing their own interests and decisions. It reduces the autonomy of our
children and our children 's children. Even before they are born, we again restricted their ability
to make their own arguments.

It is my opinion that, at best, the use of the Oposa doctrine in environmental cases should be
allowed only when a) there is a clear legal basis for the representative suit; b) there are actual
concerns based squarely upon an existing legal right; c) there is no possibility of any
countervailing interests existing within the population represented or those that are yet to be
born; and d) there is an absolute necessity for such standing because there is a threat of
catastrophe so imminent that an immediate protective measure is necessary. Better still, in the
light of its costs and risks, we abandon the precedent all together.23 (Emphasis in the original)

Similarly, in Paje:

A person cannot invoke the court's jurisdiction if he or she has no right or interest to protect. He
or she who invokes the court's jurisdiction must be the "owner of the right sought to be
enforced." In other words, he or she must have a cause of action. An action may be dismissed
on the ground of lack of cause of action if the person who instituted it is not the real party in
interest.24 The term "interest" under the Rules of Court must refer to a material interest that is
not merely a curiosity about or an "interest in the question involved." The interest must be
present and substantial. It is not a mere expectancy or a future, contingent interest.

A person who is not a real party in interest may institute an action if he or she is suing as
representative of a .real party in interest. When an action is prosecuted or defended by a
representative, that representative is not and does not become the real party in interest. The
person represented is deemed the real party in interest. The representative remains to be a
third party to the action instituted on behalf of another.

....

To sue under this rule, two elements must be present: "(a) the suit is brought on behalf of an
identified party whose right has been violated, resulting in some form of damage, and (b) the
representative authorized by law or the Rules of Court to represent the victim."

The Rules of Procedure for Environmental Cases allows filing of a citizen's suit. A citizen's suit
under this rule allows any Filipino citizen to file an action for the enforcement of environmental
law on behalf of minors or generations yet unborn. It is essentially a representative suit that
allows persons who are not real parties in interest to institute actions on behalf of the real party
in interest.

The expansion of what constitutes "real party in interest" to include minors and generations yet
unborn is a recognition of this court's ruling in Oposa v. Factoran. This court recognized the
capacity of minors (represented by their parents) to file a class suit on behalf of succeeding
generations based on the concept of intergenerational responsibility to ensure the future
generation's access to and enjoyment of [the] country's natural resources.

To allow citizen's suits to enforce environmental rights of others, including future generations, is
dangerous for three reasons:

First, they run the risk of foreclosing arguments of others who are unable to take part in the suit,
putting into. question its representativeness. Second, varying interests may potentially result in
arguments that are bordering on political issues, the resolutions of which do not fall upon this
court. Third, automatically allowing a class or citizen's suit on behalf of minors and generations
yet unborn may result in the oversimplification of what may be a complex issue, especially in
light of the impossibility of determining future generation's true interests on the matter.

In citizen's suits, persons who may have no interest in the case may file suits for others.
Uninterested persons will argue for the persons they represent, and the court will decide based
on their evidence and arguments. Any decision by the court will be binding upon the
beneficiaries, which in this case are the minors and the future generations. The court's decision
will be res judicata upon them and conclusive upon the issues presented.25

The danger in invoking Oposa v. Factoran to justify all kinds of environmental claims lies in its
potential to diminish the value of legitimate environmental rights. Extending the application of
"real party in interest" to the Resident Marine Mammals, or animals in general, through a judicial
pronouncement will potentially result in allowing petitions based on mere concern rather than an
actual enforcement of a right. It is impossible for animals to tell humans what their concerns are.
At best, humans can only surmise the extent of injury inflicted, if there be any. Petitions invoking
a right and seeking legal redress before this court cannot be a product of guesswork, and
representatives have the responsibility to ensure that they bring "reasonably cogent, rational,
scientific, well-founded arguments"26 on behalf of those they represent.

Creative approaches to fundamental problems should be welcome. However, they should be

considered carefully so that no unintended or unwarranted consequences should follow. I
concur with the approach of Madame Justice Teresita J. Leonardo-De Castro in her brilliant
ponencia as it carefully narrows down the doctrine in terms of standing. Resident Marine
Mammals and the human petitioners have no legal standing to file any kind of petition.

However, I agree that petitioners in G.R. No. 181527, namely, Central Visayas Fisherfolk
Development Center,. Engarcial, Yanong, and Labid, have standing both as real parties in
interest and as representatives of subsistence fisherfolks of the Municipalities of Aloguinsan and
Pinamungahan, Cebu, and their families, and the present and future generations of Filipinos
whose rights are similarly affected. The activities undertaken under Service Contract 46 (SC-46)
directly affected their source of livelihood, primarily felt through the significant reduction of their
fish harvest.27 The actual, direct, and material damage they suffered, which has potential long-
term effects transcending generations, is a proper subject of a legal suit.

III

In our jurisdiction, there is neither reason nor any legal basis for the concept of implied
petitioners, most especially when the implied petitioner was a sitting President of the Republic of
the Philippines. In G.R. No. 180771, apart from adjudicating unto themselves the status of "legal
guardians" of whales, dolphins, porpoises, and other cetacean species, human petitioners also
impleaded Former President Gloria Macapagal-Arroyo as "unwilling co-petitioner" for "her
express declaration and undertaking in the ASEAN Charter to protect Tañon Strait."28

No person may implead any other person as a co-plaintiff or co-petitioner without his or her
consent. In our jurisdiction, only when there is a party that should have been a necessary party
but was unwilling to join would there be an allegation as to why that party has been omitted. In
Rule 3, Section 9 of the 1997 Rules of Civil Procedure:
SEC. 9. Non-joinder of necessary parties to be pleaded. -Whenever in any pleading in which a
claim is asserted a necessary party is not joined, the pleader shall set forth his name, if known,
and shall state why he is omitted. Should the court find the reason for the omission
unmeritorious, it may order the inclusion of the omitted necessary party if jurisdiction over his
person may be obtained.

The failure to comply with the order for his inclusion, without justifiable cause, shall be deemed
a waiver of the claim against such party.

The non-inclusion of a necessary party does not prevent the court from proceeding in the action,
and the judgment rendered therein shall be without prejudice to the rights of such necessary
party.29

A party who should have been a plaintiff or petitioner but whose consent cannot be obtained
should be impleaded as a defendant in the nature of an unwilling co-plaintiff under Rule 3,
Section 10 of the 1997 Rules of Civil Procedure:

SEC. 10. Unwilling co-plaintiff. - If the consent of any party who should be joined as plaintiff can
not be obtained, he may be made a defendant and the reason therefor shall be stated in the
complaint.30

The reason for this rule is plain: Indispensable party plaintiffs who should be part of the action
but who do not consent should be put within the jurisdiction of the court through summons or
other court processes. Petitioners. should not take it upon themselves to simply imp lead any
party who does not consent as a petitioner. This places the unwilling co-petitioner at the risk of
being denied due process.

Besides, Former President Gloria Macapagal-Arroyo cannot be a party to this suit. As a co-
equal constitutional department, we cannot assume that the President needs to enforce policy
directions by suing his or her alter-egos. The procedural situation caused by petitioners may
have gained public attention, but its legal absurdity borders on the contemptuous. The Former
President's name should be stricken out of the title of this case.

IV

I also concur with the conclusion that SC-46 is both. illegal and unconstitutional.

SC-46 is illegal because it violates Republic Act No. ·7586 or the National Integrated Protected
Areas System Act of 1992, and Presidential Decree No. 1234,31 which declared Tañon Strait as
a protected seascape. It is unconstitutional because it violates the fourth paragraph of Article
XII, Section 2 of the Constitution.

Petitioner Central Visayas Fisherfolk Development Center asserts that SC-46 violated Article
XII, Section 2, paragraph 1 of the .1987 Constitution because Japan Petroleum Exploration Co.,
Ltd. (JAPEX) is 100% Japanese-owned.32 It further asserts that SC-46 cannot be validly
classified as a technical and financial assistance agreement executed under Article XII, Section
2, paragraph 4 of the 1987 Constitution.33 Public respondents counter that SC-46 does not fall
under the coverage of paragraph 1, but is a validly executed contract under paragraph 4.34·
Public respondents further aver that SC-46 neither granted exclusive fishing rights to JAPEX nor
violated Central Visayas Fisherfolk Development Center's right to preferential use of communal
marine and fishing resources.35

VI

Article XII, Section 2 of the 1987 Constitution states:

Section 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 exception. of agricultural lands, all other
natural 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
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. (Emphasis supplied)

I agree that fully foreign-owned corporations may participate in the exploration, development,
and use of natural resources, but only through either financial agreements or technical ones.
This is the clear import of the words "either financial or technical assistance agreements." This
is also

the clear result if we compare the 1987 constitutional provision with the versions in the 1973 and
1935 Constitution:

1973 CONSTITUTION

ARTICLE XIV
THE NATIONAL ECONOMY AND THE PATRIMONY OF THE NATION
SEC. 9. The disposition, exploration, development, of exploitation, or utilization of any of the
natural resources of the Philippines shall be limited to citizens of the Philippines, or to
corporations or association at least sixty per centum of the capital 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 foreign person or entity for the exploitation,
development, exploitation, or utilization of any of the natural resources. Existing valid and
binding service contracts for financial, the technical, management, or other forms of assistance
are hereby recognized as such. (Emphasis supplied)

1935 CONSTITUTION

ARTICLE XIII
CONSERVATION AND UTILIZATION OF NATURAL RESOURCES

SECTION 1. All agricultural timber, and mineral. lands of the public domain, waters, minerals,
coal, petroleum, and other mineral oils, all forces of potential energy, and other natural
resources of the Philippines belong to the State, and their disposition, exploitation,
development, or utilization shall be limited to citizens of the Philippines, or to corporations or
associations at least sixty per centum of the capital of which is owned by such citizens, subject
to any existing right, grant, lease, or concession at the time of the inauguration of the
Government established under this Constitution. Natural resources, with the exception of public
agricultural land, shall not be alienated, and no license, concession, or lease for the exploitation,
development, or utilization of any of the natural resources shall be granted for a period
exceeding twenty-five years, renewable for another twenty-five years, except as to water rights
for irrigation, water supply, fisheries, or industrial uses other than the development of water
power, in which cases beneficial use may be the measure and the limit of the grant.

The clear text of the Constitution in light of its history prevails over any attempt to infer
interpretation from the Constitutional Commission deliberations. The constitutional texts are the
product of a full sovereign act: deliberations in a constituent assembly and ratification. Reliance
on recorded discussion of Constitutional Commissions, on the other hand, may result in
dependence on incomplete authorship; Besides, it opens judicial review to further subjectivity
from those who spoke during the Constitutional Commission deliberations who may not have
predicted how their words will be used. It is safer that we use the words already in the
Constitution. The Constitution was their product. Its words were read by those who ratified it.
The Constitution is what society relies upon even at present.

SC-46 is neither a financial assistance nor a technical assistance agreement.

Even supposing for the sake of argument that it is, it could not be declared valid in light of the
standards set forth in La Bugal-B'laan Tribal Association, Inc. v. Ramos:36

Such service contracts may be entered into only with respect to minerals, petroleum and other
mineral oils. The grant thereof is subject to several safeguards, among which are these
requirements:

(1) The service contract shall be crafted m accordance with a general law that will set standard
or uniform terms, conditions and requirements, presumably to attain a certain uniformity in
provisions and avoid the possible insertion of terms disadvantageous to the country.
(2) The President shall be the signatory for the government because, supposedly before an
agreement is presented to the President for signature, it will have been vetted several times
over at different levels to ensure that it conforms to law and can withstand public scrutiny.

(3) Within thirty days of the executed agreement, the President shall report it to Congress to
give that branch of government an opportunity to look over the agreement and interpose timely
objections, if any.37 (Emphasis in the original, citation omitted)

Based on the standards pronounced in La Bugal, SC-46' S validity must be tested against three
important points: (a) whether SC-46 was crafted in accordance with a general law that provides
standards, terms, and conditions; (b) whether SC-46 was signed by the President for and on
behalf of the government; and (c) whether it was reported by the President to Congress within
30 days of execution.

VII

The general law referred to as a possible basis for SC-46's validity is Presidential Decree No. 87
or the Oil Exploration and Development Act of 1972.1âwphi1 It is my opinion that this law is
unconstitutional in that it allows service contracts, contrary to Article XII, Section 2 of the 1987
Constitution:

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. (Emphasis supplied)

The deletion of service contracts from the enumeration of the kind of agreements the President
may enter into with foreign-owned corporations for exploration and utilization of resources
means that service contracts are no longer allowed by the Constitution. Pursuant to Article
XVIII, Section 3 of the 1987 Constitution,38 this inconsistency renders the law invalid and
ineffective.

SC-46 suffers from the lack of a special law allowing its activities. The Main Opinion
emphasizes an important point, which is that SC-46 did not merely involve exploratory activities,
but also provided the rights and obligations of the parties should it be discovered that there is oil
in commercial quantities in the area. The Tañon Strait being a protected seascape under
Presidential Decree No. 123439 requires that the exploitation and utilization of energy resources
from that area are explicitly covered by a law passed by Congress specifically for that purpose,
pursuant to Section 14 of Republic Act No. 7586 or the National Integrated Protected Areas
System Act of 1992:

SEC. 14. Survey for Energy R6'sources. - Consistent with the policies declared in Section 2,
hereof, protected areas, except strict nature reserves and natural parks, may be subjected to
exploration only for the purpose of gathering information on energy resources and only if such
activity is carried out with the least damage to surrounding areas. Surveys shall be conducted
only in accordance with a program approved by the DENR, and the result of such surveys shall
be made available to the public and submitted to the President for recommendation to
Congress. Any exploitation and utilization of energy resources found within NIP AS areas shall
be allowed only through a law passed by Congress.40 (Emphasis supplied)

No law was passed by Congress specifically providing the standards, terms, and conditions of
an oil exploration, extraction, and/or utilization for Tañon Strait and, therefore, no such activities
could have been validly undertaken under SC-46. The National Integrated Protected Areas
System Act of 1992 is clear that exploitation and utilization of energy resources in a protected
seascape such as Tañon Strait shall only be allowed through a specific law.

VIII

Former President Gloria Macapagal-Arroyo was not the signatory to SC-46, contrary to the
requirement set by paragraph 4 of Article XII, Section 2 for service contracts involving the
exploration of petroleum. SC-46 was entered into by then Department of Energy Secretary
Vicente S. Perez, Jr., on behalf of the government. I agree with the Main Opinion that in cases
where the Constitution or law requires the President to act personally on the matter, the duty
cannot be delegated to another public official.41 La Bugal highlights the importance of the
President's involvement, being one of the constitutional safeguards against abuse and
corruption, as not mere formality:

At this point, we sum up the matters established, based on a careful reading of the ConCom
deliberations, as follows:

• In their deliberations on what was to become paragraph 4, the framers used the term service
contracts in referring to agreements x x x involving either technical or financial assistance. •
They spoke of service contracts as the concept was understood in the 1973 Constitution.

• It was obvious from their discussions that they were not about to ban or eradicate service
contracts.

• Instead, they were plainly crafting provisions to. put in place safeguards that would eliminate or
m minimize the abuses prevalent during the marital law regime.42 (Emphasis in the original)

Public respondents failed to show that. Former President Gloria Macapagal-Arroyo was involved
in the signing or execution of SC-46. The failure to comply with this constitutional requirement
renders SC-46 null and void.

IX

Public respondents also failed to show that Congress was subsequently informed of the
execution and existence of SC-46. The reporting requirement is an equally important requisite to
the validity of any service contract involving the exploration, development, and utilization of
Philippine petroleum. Public respondents' failure to report to Congress about SC-46 effectively
took away any opportunity for the legislative branch to scrutinize its terms and conditions.

In sum, SC-46 was executed and implemented absent all the requirements provided under
paragraph 4 of Article XII, Section 2. It is, therefore, null and void.

X
I am of the view that SC-46, aside from not having complied with the 1987 Constitution, is also
null and void for being violative of environmental laws protecting Tañon Strait. In particular, SC-
46 was implemented despite falling short of the requirements of the National Integrated
Protected Areas System Act of 1992.

As a protected seascape under Presidential Decree No. 1234,43 Tañon Strait is covered by the
National Integrated Protected Areas System Act of 1992. This law declares as a matter of
policy:

SEC. 2. Declaration of Policy. Cognizant of the profound impact of man's activities on all
components of the natural environment particularly the effect of increasing population, resource
exploitation and industrial advancement and recognizing the critical importance of protecting
and maintaining the natural biological and physical diversities of the environment notably on
areas with biologically unique features to sustain human life and development, as well as plant
and animal life, it is hereby declared the policy of the State to secure for the Filipino people of
present and future generations the perpetual existence of all native plants and animals through
the establishment of a comprehensive system of integrated protected areas within the
classification of national park as provided for in the Constitution.

It is hereby recognized that these areas, although distinct in features, possess common
ecological values that may be incorporated into a holistic plan representative of our natural
heritage; that effective administration of these areas is possible only through cooperation among
national government, local and concerned private organizations; that the use and enjoyment of
these protected areas must be consistent with the principles of biological diversity and
sustainable development.

To this end, there is hereby established a National Integrated Protected Areas System (NIPAS),
which shall encompass outstanding remarkable areas and biologically important public lands
that are habitats of rare and endangered species of plants and animals, biogeographic zones
and related ecosystems, whether terrestrial, wetland or marine, all of which shall be designated
as "protected areas."44 (Emphasis supplied)

Pursuant to this law, any proposed activity in Tañon Strait must undergo an Environmental
Impact Assessment:

SEC. 12. Environmental Impact Assessment. - Proposals for activities which are outside the
scope of the management plan for protected areas shall be subject to an environmental impact
assessment as required by law before they are adopted, and the results thereof shall be taken
into consideration in the decision-making process.45 (Emphasis supplied)

The same provision further requires that an Environmental Compliance Certificate be secured
under the Philippine Environmental Impact Assessment System before arty project is
implemented:

No actual implementation of such activities shall be allowed without the required Environmental
Compliance Certificate (ECC) under the Philippine Environment Impact Assessment (EIA)
system. In instances where such activities are allowed to be undertaken, the proponent shall
plan and carry them out in such manner as will minimize any adverse effects and take
preventive and remedial action when appropriate. The proponent shall be liable for any damage
due to lack of caution or indiscretion.46 (Emphasis supplied)
In projects involving the exploration or utilization of energy resources, the National Integrated
Protected Areas System Act of 1992 additionally requires that a program be approved by the
Department of Environment and Natural Resources, which shall be publicly accessible. The
program shall also be submitted to the President, who in turn will recommend the program to
Congress. Furthermore, Congress must enact a law specifically allowing the exploitation of
energy resources found within a protected area such as Tañon Strait:

SEC. 14. Survey for Energy Resources. - Consistent with the policies declared in Section 2,
hereof, protected areas, except strict nature reserves and natural parks, may be subjected to
exploration only for the purpose of gathering information on energy resources and only if such
activity is carried out with the least damage to surrounding areas. Surveys shall be conducted
only in accordance with a program approved by the DENR, and the result of such surveys shall
be made available to the public and submitted to the President for recommendation to
Congress. Any exploitation and utilization of energy resources found within NIPAS areas shall
be allowed only through a taw passed by Congress.47 (Emphasis supplied)

Public respondents argue that SC-46 complied with the procedural requirements of obtaining an
Environmental Compliance Certificate.48 At any rate, they assert that the activities covered by
SC-46 fell under Section 14 of the National Integrated Protected Areas System Act of 1992,
which they interpret to be an exception to Section 12. They argue that the Environmental
Compliance Certificate is not a strict requirement for the validity of SC-46 since (a) the Tañon
Strait is not a nature' reserve or natural park; (b) the exploration was merely for gathering
information; and ( c) measures were in place to ensure that the exploration caused the least
possible damage to the area.49

Section 14 is not an exception to Section 12, but instead provides additional requirements for
cases involving Philippine energy resources. The National Integrated Protected Areas System
Act of 1992 was enacted to recognize the importance of protecting the environment in light of
resource exploitation, among others.50 Systems are put in place to secure for Filipinos local
resources under the most favorable conditions. With the status of Tañon Strait as a protected
seascape, the institution of additional legal safeguards is even more significant.

Public respondents did not validly obtain an Environmental Compliance Certificate for SC-46.
Based on the records, JAPEX commissioned an environmental impact evaluation only in the
second subphase of its project, with the Environmental Management .Bureau of Region

VII granting the project an Environmental Compliance Certificate on March 6, 2007.51

Despite its scale, the seismic surveys from May 9 to 18, 2005 were conducted without any
environmental assessment contrary to Section 12 of the National Integrated Protected Areas
System Act of 1992.

XI

Finally, we honor every living creature when we take care of our environment. As sentient
species, we do not lack in the wisdom or sensitivity to realize that we only borrow the resources
that we use to survive and to thrive. We are not incapable of mitigating the greed that is slowly
causing the demise of our planet. Thus, there is no need for us to feign representation of any
other species or some imagined unborn generation in filing any action in our courts of law to
claim any of our fundamental rights to a healthful ecology. In this way and with candor and
courage, we fully shoulder the responsibility deserving of the grace and power endowed on our
species.

ACCORDINGLY, I vote:

(a) to DISMISS G.R. No. 180771 for lack of standing and STRIKE OUT the name of Former
President Gloria Macapagal-Arroyo from the title of this case;

(b) to GRANT G.R. No. 181527; and

(c) to DECLARE SERVICE CONTRACT 46 NULL AND VOID for violating the 1987 Constitution,
Republic Act No. 7586, and Presidential Decree No. 1234.

MARVIC M.V.F. LEONEN

Associate Justice