Professional Documents
Culture Documents
SUMMARY:
The country has the most progressive and articulated environmental laws and
regulations. However, environmental problems remain daunting. Thus, it is
important to uphold what the law says and apply the same in reality. The role of
Judiciary in environmental policymaking as articulated in the myth system and
operational code is indispensable.
The author presented his analysis into two parts. The first part is entitled
Oposa v. Factoran: Locating the Role of the Judiciary in the Myth System while the
other is The Judiciary and The environmental Dilemma: The Operational Code.
Oposa v. Factoran: Locating the Role of the Judiciary in the Myth System
The case of Oposa vs. Factoran has been widely cited worldwide for its
concept of intergenerational responsibility, particularly in cases related to ecology
and environment. In the case the action was filed by several minors represented by
their parents against the Department of Environment and Natural Resources to
cancel existing timber license agreements in the country and to stop issuance of new
ones. It was claimed that the resultant deforestation and damage to the
environment violated their constitutional rights to a balanced and healthful ecology
and to health (Sections 16 and 15, Article II of the Constitution). The petitioners
asserted that they represented others of their generation as well as generations yet
unborn.
Finding for the petitioners, the Court stated that even though the right to a
balanced and healthful ecology is under the Declaration of Principles and State
Policies of the Constitution and not under the Bill of Rights, it does not follow that it
is less important than any of the rights enumerated in the latter: it concerns
nothing less than self-preservation and self-perpetuation, the advancement of which
may even be said to predate all governments and constitutions. The right is linked
to the constitutional right to health, is fundamental, constitutionalized, self-executing
and judicially enforceable. It imposes the correlative duty to refrain from impairing
the environment.
The court stated that the petitioners were able to file a class suit both for
others of their generation and for succeeding generations as the minors' assertion
of their right to a sound environment constitutes, at the same time, the performance
of their obligation to ensure the protection of that right for the generations to
come.
The actual cost to the whole society with respect to consumption and usage
of our natural resources are not usually counted. The government failed to strictly
implement the laws by charging minimal fees for the permit to extract these
resources and by disregarding the ecological damage that it could inflict to our
nature and society.
The author suggested four perspectives that the judiciary or any other
participant in the environmental decision process may adopt singly or incombination
and they are the following:
The State should lay down specific standards that all must follow and should
monitor and enforce compliance by coercive or other measures. This is justified in
the Regalian Doctrine of the country. As a consequence of claim of ownership overall
natural resources, the Philippine government has to monopolize the decision process
on how to utilize these resources, which would in turn results to the adoption of a
short-sighted and extractive utilization policy because the State consistently favored
commercial users, and an extremely insecure land tenure system within the forest
zones.
b. Market based perspective
This approach is premised on the proposition that the best way of realizing
the goals of environmental policy is to use economic incentives to encourage
sustainable and ecologically-friendly activities or economic sanctions to discourage
unsustainable and pollutive actions. It requires divestment by the State of its
ownership claim over most natural resources and increasing the scope of resources
that may be covered by property rights.
d. Pollution Prevention
As to the stakeholder, the most important are the commercial users and
communities of direct users. To this sector, the challenge is to realize and accept the
fact that the ways of unrestrained exploitation is over. They retain as much as power
as they can but without any willingness to compromise.