A Powerpoint Presentation

by

CHERYL L. DAYTEC-YAGOT
Cordillera Indigenous Peoples Legal Center (DINTEG)

THE WRIT OF KALIKASAN: NORMATIVE FOUNDATIONS

ENVIRONMENTAL JUSTICE is now a recognized human

right at this time that the planet is facing an ecological timebomb with threats of environmental disaster in different parts of the globe.
INTERGENERATIONAL RESPONSIBILITY: The present

generation has the responsibility to preserve the environment for generations yet to be born ( a doctrine enunciated in the Stockholm Declaration and by the Philippine Supreme Court in Oposa v. Factoran).

WE DO NOT INHERIT THE LAND FROM OUR ANCESTORS; WE BORROW IT FROM OUR CHILDREN.- A
proverb common to indigenous peoples

OBJECTIVES OF THE WRIT OF KALIKASAN

1. Protection and promotion of constitutional right to a balanced and healthful ecology; 2. Provision of access to justice- through simplified, speedy and inexpensive procedure for the enforcement of environmental rights and duties 3. To introduce and adopt innovations and best practices ensuring the effective enforcement of remedies and redress for violation of environmental laws; and 4. To enable the courts to monitor and exact compliance with orders and judgments in environmental cases.

CONSTITUTIONAL FRAMEWORK
RIGHT TO A BALANCED AND HEALTHFUL ECOLOGY
(Sec. 16, Art. 2 of Phil. Consti.) The state shall advance the right of the people to a balanced and healthful ecology in accordance with the rhythm and harmony of nature

RIGHT TO HEALTH (Sec. 15, Art. II, Phil. Consti.)

The state shall protect and promote the right to health of the people and instill health consciousness among them. RIGHTS OF INDIGENOUS PEOPLES which include the right to their cultural and spiritual base (in other words, their ancestral land which are the Philippines last living lung).

RULE ON WRIT OF KALIKASAN

Where Rule is found: It is incorporated as Rule VII of The Rules of Procedure for Environmental Cases adopted by the Supreme Court in April 2010. Nature of Writ : Special Civil Action Applicability: Applies when there is damage in violation of environmental law, rule or regulation, where damage is of such magnitude as to prejudice the life, health or property of inhabitants in 2 or more cities or provinces Who May File: A natural or juridical person, entity authorized by law, PO, NGO, or any public interest group accredited by or registered with any government agency, on behalf of persons whose constitutional right to a balanced and healthful ecology is violated, or threatened with violation. (Note: Requirement of accredition is to guarantee legal existence of group or NGO.)

RULE ON WRIT OF KALIKASAN

Respondent: A public official or employee, or private individual or entity. Contents of Petition: (1) Name/s and personal circumstances of petitioner/s, and of respondent/s who if unknown and uncertain, may be described under assumed appellation; (2) The environmental law, rule or regulation violated or threatened to be violated , the act or omission complained of, and the environmental damage sustained. (3) Evidence to be attached: affidavits of witnesses, documentary evidence, scientific or other expert studies, and object evidence; (4) The certification of non-forum shopping (5) The reliefs prayed for which may include a prayer for the issuance of a Temporary Protection Order

RULE ON WRIT OF KALIKASAN

When is a Temporary Environmental Protection Order (or TEPO, which is equivalent to the TRO in ordinary jurisprudence) available? In case of extreme urgency and
the applicant will suffer grave injustice and irreparable injury, the court may issue ex parte a TEPO effective for only seventytwo (72) hours from date of the receipt of the TEPO by the party or person enjoined. Within said period, the court where the case is assigned shall conduct a summary hearing to determine whether the TEPO may be extended until the termination of the case. The court should periodically monitor the existence of acts which are the subject matter of the TEPO, the TEPO can being lifted anytime as the circumstances may warrant.

RULE ON WRIT OF KALIKASAN

Dissolution of the TEPO: The TEPO may be dissolved if it appears after hearing that its issuance or continuance would cause irreparable damage to the party or person enjoined while the applicant may be fully compensated for such damages as he may suffer and subject to the posting of a sufficient bond by the party or person enjoined. Filing Fee: Pay as you enter rule does not apply; no filing fee required. When to File Return: Within TEN days from receipt of notice Form and Content of Return: Must be verified; General denial of allegations is deemed an admission, thus denials must be specific. Effect of Failure to File Return: Court will hear the case ex parte

RULE ON WRIT OF KALIKASAN

Prohibited Pleadings: (a) Motion to dismiss; (b) Motion for extension of time to file return; (c) Motion for postponement; (d) Motion for a bill of particulars; (e) Counterclaim or crossclaim; (f) Third-party complaint; (g) Reply; and (h) Motion to declare respondent in Why prohibit certain pleadings? To expedite the judicial process. A motion for intervention is not a prohibited pleading. Thus, any interested party may file such a motion which affirms the public interest nature of the Writ of Kalikasan, a remedy which a large segment of the community may wish to avail of.

RULE ON WRIT OF KALIKASAN

Filing of Pleading: Personal filing, filing by mail, and in the case of memorandums, filing electronically (email). Effect of Filing of Writ of Kalikasan on other judicial actions: The filing of a petition for the issuance of the writ of kalikasan shall not preclude the filing of separate civil, criminal or administrative actions. The separate actions may be filed before or after the filing of the writ of kalikasan.

RULE ON WRIT OF KALIKASAN

Ultimate Reliefs to be prayed for/ granted: Permanent Cease and Desist Order Order for rehabilitation or Restoration of damage Order for respondent to monitor strict compliance with court orders and decisions Order for respondent to make periodic reports on strict compliance with court orders and decisions. Such other reliefs (except award of damages to individual petitioners) NOTE: The Court will not grant an award for personal damages which may be claimed in a separate civil action.

THE PROCEDURE AT A GLANCE

Filing of Initiatory Pleading Manner: Personal or by registered mail Court of Jurisdiction: Court of Appeals OR Supreme Court
Court orders issuance of writ within THREE days upon filing of the action IF the petition is sufficient in form and substance. Clerk of Court issues writ under seal of court Writ is served either personally, or by substituted service. Clerk of court who unduly delays issuance of writ shall be punished for contempt of court.

Issuance of the Writ

Service of Writ

PROCEDURE: AT A GLANCE
Filing of Return Respondent files return of writ within NON-EXTENDIBLE period of TEN DAYS from receipt of writ. Effect of failure to file return: Court hears the case ex parte so as not to delay the proceedings. Court sets hearing UPON RECEIPT of return May include preliminary conference to simplify issues inorder to expedite proceedings Hearing period including preliminary conference should not exceed SIXTY DAYS

Hearing

After hearing, the court issues an order submitting the case for decision. It MAY require parties to submit a memorandum, if possible, in its electronic form, within a non-extendible period of thirty (30) days from the date the petition is submitted for Submission decision.

PROCEDURE: AT A GLANCE
Within sixty (60) days from the time the petition is submitted for decision, the court shall render judgment granting or denying the Judgment privilege of the writ of kalikasan. Appeal may be raised from Court of Appeals to Supreme Court within FIFTEEN DAYS from notice of adverse judgment or denial of motion for reconsideration under Rule 45 of Rules of Court. Issues that may be raised: Issues of law and by way of exception to Rule 45, issues of fact

Appeal

In case of a winning judgment, it will be executed Execution The execution will be governed by the ordinary rules.

FEATURES OF WRIT OF KALIKASAN

A homegrown judicial remedy available only in the

Philippines Summary in nature; expedited disposition of cases Liberal rule on locus standi; organizations can stand in representation of communities or of those who suffered actual damage. No docket fee required to be paid by petitioner to strike a balance between ecological and economic development concerns.

Allows submission of memorandum through email

FEATURES OF WRIT OF KALIKASAN

Allows discovery procedure in gathering evidence ( such as

ocular inspection, production or inspection of documents or things) Applies PRECAUTIONARY PRINCIPLE: When human activities may lead to threats of serious and irreversible damage to the environment that is scientifically plausible but uncertain, actions shall be taken to avoid or diminish that threat and lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation. Thus, this principle modifies the rules on evidence in writ of kalikasan cases where the burden is on the respondents to prove that their activity that may cause damage to the environment is not in fact damaging.

WRIT OF KALIKASAN: First Philippine Industrial Corporation (FPIC) Case

In July 2010, a persistent fuel leak began to well up in the basement of the West Tower Condominium in Makati City, forcing the condominium residents to temporarily vacate the area. The leak was traced by experts to a 117 kilometer FPICoperated pipeline which delivers petroleum products from Batangas to Manila. Claiming that pipeline leak causes a potential environmental and security threat" to the condominium residents as well as to people living in areas within two or more provinces and cities under which the pipeline runs, the residents filed a petition for a writ of kalikasan with the Supreme Court.
In their petition, the residents prayed that the FPIC permanently shut down and replace the damaged pipeline.

The residents also prayed that the Supreme Court compel the pipelines operator to rehabilitate and restore the environment" affected by the oil leak, and to open a special trust fund to answer for similar incidents in the future. They also prayed for a TEPO temporarily stopping the Lopez-owned First Philippine Industrial Corp. (FPIC) from operating its damaged pipeline. The Supreme Court granted the writ the first time it did so since the promulgation of the Rule on Kalikasan- and directed FPIC to cease and desist from operating the pipeline until further orders and to check the structural integrity of the whole span of the 117-km pipeline and give a report to the Court within 60 days. FPIC has been rehabilitating its pipelines. The TEPO has been lifted. The SC has since remanded the case to the Court of Appeals to determine if the petitioners are entitled to the privilege of the writ.

PENDING KALIKASAN CASES involving mining

A petition filed by the Tribal Coalition of

Mindanao(TRICOM) and several tribal communities for the immediate stop of alleged illegal mining operations of 5 mining companies in Surigao del Sur and Surigao del Norte. A petition filed by a group of Subanens against the the Department of Environment and Natural Resources, Mines and Geosciences Bureau, Protected Areas and Wildlife Management Bureau and National Commission on Indigenous Peoples to stop the issuance of mining permits in the the Zamboanga Peninsula.