The coal-fired thermal power plant, the Subic Watershed Forest Reserve and the Writ of Kalikasan

In 1992, then President CORAZON C. AQUINO, issued Proclamation No. 926 to “withdraw from sale, entry, settlement, exploitation, exploration and other forms of disposition, subject to private rights, if any there be, and set aside and declare Subic Watershed Forest Reserve to protect and preserve the rare biological diversity of the flora and fauna therein and keep intact the productive capacity of the hydrologic unit supplying the developable portions of the Subic Bay Military Reservation…”

The initiative of the present administration of the Subic Bay Metropolitan Authority (SBMA) to “institutionalize public consultations for environmentally sensitive projects to give stakeholders a voice in determining development directions and ensure transparency in the Subic Bay Freeport,” is legally sound, duly commendable and must be fully supported by all stakeholders.

Just recently, SBMA conducted a stakeholders’ consultation process to understand and consolidate the opinions of various concerned sectors on the coal-fired thermal power plant being proposed for construction at the Redondo Peninsula. At the moment, according to SBMA, only a site preparation permit has been issued to the consortium that owns the proposed coal-fired thermal power plant.

Hopefully, the residents, fisher-folks, businesses such as resorts, hotels, amusement parks and water utilities, contiguous to and within the Subic Bay Freeport Zone (SBFZ), wouldn’t have to resort to legal relief and remedies - such as the “Writ of Kalikasan” - to save and protect the pristine forest, coast and waters of Subic Bay, consistent with and pursuant to Proclamation 926, Republic Act No. 7227 and other pertinent environmental laws.

No matter how one looks at it, a coal-fired thermal power plant appears anathema to SBFZ’s thrust as a prime eco-tourism destination and health and retirement haven. According to news reports, Subic already surpassed Baguio in terms of numbers of visitors. With its vision of becoming a part of cruise ship itineraries, a world-class leisure- and resort-type residences, and preferred meetings, incentives, conventions and exhibitions (MICE) venue, a coal-fired thermal power plant ominously jutting out across the bay would be a huge turn-off and disappointment. The equally important protection of several endangered species such as fruit bats and marine turtles ought not to be discounted.

Should the threat of a coal-fired thermal power plant persist, the effectivity of the Supreme Court-sanctioned “The Rules of Procedure for Environmental Cases” would be tested.

There it provides for the extraordinary remedy called “Writ of Kalikasan.” The writ is a remedy available to a natural or juridical person, entity authorized by law, people’s organization, non-governmental organization, 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 by an unlawful act or omission of a public official or employee, or private individual or entity, involving environmental damage of such magnitude as to prejudice the life, health or property of inhabitants in two or more cities or provinces.” (Section 1, Rule 7)

According to the Supreme Court (SC), “the underlying emphasis in the Writ of Kalikasan is magnitude as it deals with damage that transcends political and territorial boundaries. Magnitude is thus measured according to the qualification set forth in this Rule — when there is environmental damage that prejudices the life, health or property of inhabitants in two or more cities or provinces.”

“The petition for the issuance of a Writ of Kalikasan can be filed by any of the following: (1) a natural or juridical person; (2) entity authorized by law; or (3) people’s organization, non-governmental organization, 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… involving environmental damage of such magnitude as to prejudice the life, health or property of inhabitants in two or more cities or provinces.”  Those who may file for this remedy must represent the inhabitants prejudiced by the environmental damage subject of the writ. The requirement of accreditation of a group or organization is for the purpose of verifying its existence. The accreditation is a mechanism to prevent “fly by night” groups from abusing the writ.”

“The Writ of Kalikasan is a special remedy available against an unlawful act or omission of a public official or employee, or private individual or entity, involving environmental damage of such magnitude as to prejudice the life, health or property of inhabitants in two or more cities or provinces,” adds the SC.

Happy New Year!

I barely noticed it: 50 posts and 4,629 pageviews later, we're ushering another year – the Dragon year, according to the Chinese calendar. Let me pause to thank those who have supported this humble blog: Gina, my loving and lovely wife; my brother Joel; Tiara, my sis in the PSD sorority; brod Gilbeys; JTA, my classmate; Elma, friend and staff; and fellow blogger, Bay of 1k4tribike.

Thank you, fellow netizens around the world who have stumbled into my blog; I hope the articles have helped you understand or led you to discover whatever it was that you were looking for, particularly on matters involving Philippine law. Should there be some mistakes, I apologize – the responsibility is purely mine.

Thanks for bearing with my personal and random musings about family life, travels, literature and whatnot. I hope you somehow found them useful, amusing, even both.

I wish you all the best of this Season! Have a safe and happy new year. Cheers for a better year ahead!         

Of natural calamities, laws and political will: The typhoon Sendong story

The typhoon “Sendong” story in Cagayan de Oro -- that tragically claimed, as of last count, at least a thousand lives -- has become a cyclical phenomenon throughout the country for the past decade: Ormoc, Aurora, even Marikina, to name a few. 

Most of the victims were squatters living along the Cagayan de Oro riverbanks. According to Antonio Montalvan II, a Cagayanon born and bred:

“The alluvial plains—huge swaths of land that lie on the riverbanks—became a magnet for informal settlers over the last 20 years. And what started as a small delta has grown over the years from continuous siltation.

That is the island now known as Isla de Oro, heavily populated for the last 20 years but nothing but a bar of silt and sand.

xxx

And yet the city government allowed the informal settlers to mushroom.” (http://newsinfo.inquirer.net/116425/we-had-been-warned-of-cagayan-rivers-fury)

On the other hand, reacting to such tragedies, Senator Manny Villar filed recently a bill banning the construction of houses along the waterways, including riverbanks. (Villar files bill banning houses along waterways. Philippine Star, December 23, 2011.)

I suggest that Republic Act (RA) No. 7279, or the “Urban Development and Housing Act of 1992,” be revisited by the good Senator and the concerned local government officials.

RA 7279 contains the following provisions:

Sec.  29. Resettlement. — Within two (2) years from the effectivity of this Act, the local government units, in coordination with the National Housing Authority, shall implement the relocation and resettlement of persons living in danger areas such as esteros, railroad tracks, garbage dumps, riverbanks, shorelines, waterways, and in other public places as sidewalks, roads, parks, and playgrounds. The local government unit, in coordination with the National Housing Authority, shall provide relocation or resettlement sites with basic services and facilities and access to employment and livelihood opportunities sufficient to meet the basic needs of the affected families. 

Sec.  30. Prohibition Against New Illegal Structures. — It shall be unlawful for any person to construct any structure in areas mentioned in the preceding section. 

After the effectivity of this Act, the barangay, municipal or city government units shall prevent the construction of any kind of illegal dwelling units of structures within their respective localities. The head of any local government unit concerned who allows, abets or otherwise tolerates the construction of any structure in violation of this section shall be liable to administrative sanctions under existing laws and to penal sanctions provided for in this Act. 

Sec.  45. Penalty Clause. — Any person who violates any provision of this Act shall be imposed the penalty of not more than six (6) years of imprisonment or a fine of not less than Five thousand pesos (P5,000) but not more than One hundred thousand pesos (P100,000), or both, at the discretion of the court: Provided, That, if the offender is a corporation, partnership, association or other juridical entity, the penalty shall be imposed on the officer or officers of said corporation, partnership, association or juridical entity who caused the violation. 

Moreover, Section 2 of the “Implementing Rules and Regulations Governing Summary Eviction” of RA 7279, states:

Section 2. Coverage. – the following shall be subject for summary eviction:

1.0 New squatter families whose structures were built after the effectivity of RA 7279; and

2.0 Squatter families identified by the LGU in cooperation with Presidential Commission of the Urban Poor (PCUP), Philippine National Police (PNP) and accredited Urban Poor Organization as professional squatters or members of squatting syndicates as defined in the Act.

Applying the Implementing Rules, the appellate court, in the case of Hinacay, et. al. vs. Muntinlupa, et. al (CA-G.R. SP No. 80496) -- a case that appears not to have been elevated to the Supreme Court -- held, to wit:

“Petitioners failed to show that they are not “new squatters.” All they say is that they are occupants of the property “for a long period of time,” but fail to state the exact date of the start of their occupation.

Hence, they fall under the category of “new squatters”. As such, they are not entitled to the protection of RA 7279 and in fact should be subjected to summary eviction.

Petitioners’ houses may be demolished and they may be evicted from the land without need of an ejectment case.”

Thus, all it takes, perhaps, is sheer political will coupled with social justice, to prevent the unnecessary loss of lives of the poor and the downtrodden – and not an additional bill.

A comprehensive cyberspace law as an incontrovertible necessity in the Philippines

In 1999, as a law student, I co-authored a legal paper calling for the enactment of a comprehensive cyberspace law in the Philippines. There were just a handful of email services at that time, ICQ was the social networking site aside from the IRC, the bandwidth was inadequate to support fast video streaming, and you had to dial for access using a noisy modem. Despite the explosion on Internet usage and uses and tremendous increase of Web-users in the Philippines since then, such a law has yet to be enacted. The following excerpts serve as the paper's conclusion:

"From the discussion of evolution and continuing development of the Internet and the exponential growth of services and information provided online, this study has shown that there exist compelling reasons for legislative reform and extra-statutory measures.  While in other jurisdictions, especially in technologically advanced countries with heavier dependence on the Internet, “cyberspace law” has gained recognition as a field in itself, in the Philippines, this has yet to happen.

In October 26, 1998, President Joseph Ejercito Estrada signed Executive Orders No. 34 and No. 35, both seeking to commence action on the part of government to keep in step with the information revolution.  Executive Order No. 34 directs the National Computer Center (NCC) to design and build an integrated Government Information Infrastructure (GII), presumably in the same, if not downscaled, mold as the United States’ National Information Infrastructure.  Executive Order No. 35 provides for the restructuring of the National Computer Center, as the central executive agency that will oversee the coordination and integration of government policies, programs and projects relating to the information infrastructure. 

While laudable in intent and principle, these measures may be endangered by the inaction of government in dealing with computer and Internet abuse.  The acts here discussed – hacking, the sending of viruses, and spamming and email overflow – already pose as threats to the GII, even before it is formally set up.  Without decisive and swift action by government, particularly in the field of legislative reform, the technological advancement envisioned may actually be a disastrous step into backwardness.  At present, even without the GII, domestic hacking, creation and sending of viruses, and spamming are prevalent.  With the GII, government records and data, including confidential and sensitive information relating to national security and state programs, are likewise exposed to danger if measures to prevent and respond to abuse are not in place.

In the meantime, pending legislative reform, this study has sought to provide alternative means of penalizing hackers and crackers, disseminators of viruses and other malicious code, and spammers, whether criminally or civilly.  It has been shown that these are not traditional crimes and can not thus be adequately analogized and penalized as such.  As to civil actions, substantive law might be adequate, in the sense that the elements of actionable conduct are fulfilled.  However, perhaps an even greater challenge is hurdling problems that may be encountered procedurally, such as the acquisition of jurisdiction, the admissibility of electronic and digital information as evidence, and other considerations, which if unresolved, could ultimately defeat a civil or criminal action or recoverability of damages.

Legislative reform and other domestic measures must also be resorted to alongside trans-border efforts to penalize Internet abuses.  This is a necessary consequence of the “borderless” nature of the Internet itself.  International cooperation will have to be forged to effectively respond to rising incidence of criminality and tortious acts on the Internet.  Such international cooperation will have to include not only governments, but the private sector as well.  Government regulation on the Internet has received much resistance from sectors who believe that regulation will impede further advancements on the Internet.  However, the Internet has proven to be a new arena for conflict, where interests are asserted and threatened – without some form of regulation, how will interests be allocated and rights protected?

The recognition of government that the Internet is such an arena, and that it is in the interest of the State to treat it as such, constitutes the single most important initial step in dealing with Internet abuse."

To date, apart from E-Commerce Law and Cybercrime Prevention Act, no pro-active and up-to-date law on cyberspace and the Internet has been enacted, 17 years since the Philippines became a member of the National Science Foundation Network (NSFNET) -- in 1994. It's about time.  

Our kids abroad: Part I (Macau, HK, Shanghai and Beijing)

We had our first family trip out of the country in 2006 when Vito was 3 years old and Manu was 2 years old. We planned to go to Hong Kong via Macau so Gina and I decided that we might as well try to visit some notable places there that we thought would be interesting to kids, such as the Macau Tower, Macau Grand Prix Museum, St. Paul’s ruins and a nearby museum (that used to be a fort with its old cannons still intact and overlooking Macau), and also such other places beyond the regular tourists’ radar (e.g., a park with huge rocks dotted with literary verses; a fireman’s museum). We varied our meals by eating/buying food among Western restaurants and fast food joints, convenience stores, and local eateries.

On top of the Macau Tower

After 2 nights in Macau, we took a hydrofoil to HK. Carrying 2 toddlers who would fight for a stroller (that I picked up in a store in Macau) owing to long walks, we took the usual “safe” and kid-friendly itineraries, like Disneyland, Ocean Park, Victoria Peak, Aberdeen Harbour, and HK Space Museum; watched the Symphony of Lights, strolled at the Avenue of Stars, and shopped a bit at Harbour City; and simply enjoyed the nippy weather of HK in December.
 

Inside the HK Space Museum

When we went out of the country in 2008, again during another Christmas break, we traveled to Shanghai and Beijing. While in Shanghai, we toured both sides of the Bund, the French Concession/Xintiandi, went to the Shanghai Science and Technology Museum, rode the Maglev train, watched acrobatic shows, among others. After the first day with a free tour, we went around the city by ourselves, either by walking or taking the subway/taxi.

Waking up early in the morning, after celebrating a very silent New Year's eve in Shanghai (not a single fireworks/firecracker was heard), we took a shuttle to the Pudong International Airport for our trip to Beijing.

Onboard the Maglev train hurtling at a maximum speed of 431 km/hr

Again, as we considered these early forays as mere exploratory trips in preparation for, hopefully, more in depth and longer travels in the future, and with due consideration of our modest budget, we had a whirlwind tour of the Forbidden City, the Great Wall, the Olympics stadiums, and Beihai Park. We skated on the frozen Beihai Lake, had the famous roast duck for a late dinner in a restaurant off Wangfujing St. (a street well known for exotic dishes), and bought unusually succulent, sweet boiled corn on the cob sold by an elderly lady in front of Day’s Inn Hotel. We were lucky that Vito’s Ninong (Godfather) Lester, who was then finishing his master of laws at Tsinghua University, gladly served as our guide.

At the Juyongguan section of the Great Wall

In 2009, we were fortunate to visit Singapore (on a whim). There, I met 2 classmates from UP Law, JT and Hazel, who were doing extremely well as expat lawyers. And in March this year, we went back to HK with Nanay and the 2 kids (who have sprung up in heights) in tow -- they both received excellent academic awards during their school’s moving up ceremonies. Allow me to share the details next posting.

Meanwhile, our itinerant feet are getting itchy again...

The relationship test and the nature of the controversy test in determining intra-corporate disputes

In the landmark case of STRADEC vs. SIDC, et. al. (GR No. 187872), the Supreme Court has modified and modernized the test in determining intra-corporate disputes by applying both the relationship test and the nature of the controversy test.

The ruling states that, “an intra-corporate dispute is understood as a suit arising from intra-corporate relations or between or among stockholders or between any or all of them and the corporation. Applying what has come to be known as the relationship test, it has been held that the types of actions embraced by the foregoing definition include the following suits: (a) between the corporation, partnership or association and the public; (b) between the corporation, partnership or association and its stockholders, partners, members, or officers; (c) between the corporation, partnership or association and the State insofar as its franchise, permit or license to operate is concerned; and, (d) among the stockholders, partners or associates themselves.”

On the other hand, it declares that, “Under the nature of the controversy test, the dispute must not only be rooted in the existence of an intra-corporate relationship, but must also refer to the enforcement of the parties' correlative rights and obligations under the Corporation Code as well as the internal and intra-corporate regulatory rules of the corporation.”

According to the Supreme Court, the combined application of the relationship test and the nature of the controversy test has, consequently, become the norm in determining whether a case is an intra-corporate controversy or is purely civil in character.

By applying the relationship test, the Supreme Court finds in STRADEC case “that the first and second causes of action qualify as intra-corporate disputes since STRADEC and respondent Wong are incorporators and/or stockholders of SIDC.” And “considering that they fundamentally relate to STRADEC’s status as a stockholder and the alleged fraudulent divestment of its stockholding in SIDC, the same causes of action also qualify as intra-corporate disputes under the nature of the controversy test.”

Hence, combining both tests then, the Supreme Court declares that “STRADEC’s causes of action for the nullification of the loan and pledge over its SIDC shareholdings contracted by respondents Yujuico and Sumbilla as well as the avoidance of the notarial sale conducted by respondent Raymond M. Caraos both qualify as intra-corporate disputes.”

Thinking of buying leasehold rights or subleasing real property in Subic Bay Freeport Zone?

When buying leasehold rights or leasing real properties from locators and individuals inside the Subic Bay Freeport Zone (SBFZ), “caveat emptor.” Let the buyer beware.

The Freeport is governed by a special law, Republic Act No. 7227, as amended; its implementing rules and regulations; as well as a relatively new set of rules entitled “Resident’s Handbook.”

A property being offered for transfer or sublease should have been duly approved for lease/assignment by the Subic Bay Metropolitan Authority (SBMA) board of directors. The properly signed lease agreement or deed of assignment must have been registered at the SBMA Registry Office. The subject property must also be checked whether it has unpaid accounts with the SBMA, or utility firms such as Enerzone, Subicwater and Subictel.

To be accorded legal effect especially insofar as SBMA and third parties are concerned, the succeeding deed of assignment or sublease agreement should be submitted to the SBMA for approval and registration; and the latter’s share from the total purchase price properly accounted and remitted to it. When applicable, no taxes would be assessed and paid from the transaction.

It is because RA 7227 provides that:

"(c) The provisions of existing laws, rules and regulations to the contrary notwithstanding, no taxes, local and national, shall be imposed within the Subic Special Economic Zone. In lieu of paying taxes, three percent (3%) of the gross income earned by all businesses and enterprises within the Subic Special Economic Zone shall be remitted to the National Government, one percent (1%) each to the local government units affected by the declaration of the zone in proportion to their population area, and other factors. In addition, there is hereby established a development fund of one percent (1%) of the gross income earned by all businesses and enterprises within the Subic Special Economic Zone to be utilized for the development of municipalities outside the City of Olongapo and the Municipality of Subic, and other municipalities contiguous to the base areas.

In case of conflict between national and local laws with respect to tax exemption privileges in the Subic Special Economic Zone, the same shall be resolved in favor of the latter." (Section 12)

For that matter, the would-be assignor/sublessor must guarantee to the buyer/sublessee the following:

1. That it is not in default in its agreement with SBMA;
2. That it shall pay SBMA its due share from the total consideration of the agreement;
3. That it shall submit to SBMA a certified true copy of the deed of assignment/sublease agreement within five (5) days from its execution; and
4. That it shall pay in full the balance stipulated in the terms of its lease agreement, upon execution of the deed of assignment/sublease agreement.

Finally, it is important to remember that the original Lease Agreement between the locator/individual and the SBMA is always considered to be integral to the succeeding deed of assignment/sublease.