Some Salient Points of “The Rules of Procedure for Environmental Cases”

A 600 MW coal power plant threatening to rise across the bay, beaches that seem to get dirtier everyday, toppling of huge, old trees by rain and wind, unusual flooding even in elevated areas – these are some environmental concerns that residents and locators in Subic Bay Freeport have begun to contend with, the latter two having been exposed by super-typhoon Pedring. The manner by which natural resources and the environment are being utilized and managed binds these issues together, calling for a closer scrutiny, if not outright, decisive action.

Brushing up a bit on the Rules of Procedure for Environmental Cases (A.M. No. 09-6-8-SC), that became effective starting 29 April 2010, could come in handy, especially now.

The Rules have the following objectives, to wit:

(a) To protect and advance the constitutional right of the people to a balanced and healthful ecology;
(b) To provide a simplified, speedy and inexpensive procedure for the enforcement of environmental rights and duties recognized under the Constitution, existing laws, rules and regulations, and international agreements;
(c) To introduce and adopt innovations and best practices ensuring the effective enforcement of remedies and redress for violation of environmental laws; and
(d) To enable the courts to monitor and exact compliance with orders and judgments in environmental cases. (Section 3, Rule I)

These Rules govern the procedure in civil, criminal and special civil actions before the Regional Trial Courts, Metropolitan Trial Courts, Municipal Trial Courts in Cities, Municipal Trial Courts and Municipal Circuit Trial Courts involving enforcement or violations of environmental and other related laws, rules and regulations such as but not limited to the following:

(a) Act No. 3572, Prohibition Against Cutting of Tindalo, Akli, and Molave Trees;
(b) P.D. No. 705, Revised Forestry Code;
(c) P.D. No. 856, Sanitation Code;
(d) P.D. No. 979, Marine Pollution Decree;
(e) P.D. No. 1067, Water Code;
(f) P.D. No. 1151, Philippine Environmental Policy of 1977;
(g) P.D. No. 1433, Plant Quarantine Law of 1978;
(h) P.D. No. 1586, Establishing an Environmental Impact Statement System Including Other Environmental Management Related Measures and for Other Purposes;
(i) R.A. No. 3571, Prohibition Against the Cutting, Destroying or Injuring of Planted or Growing Trees, Flowering Plants and Shrubs or Plants of Scenic Value along Public Roads, in Plazas, Parks, School Premises or in any Other Public Ground;
(j) R.A. No. 4850, Laguna Lake Development Authority Act;
(k) R.A. No. 6969, Toxic Substances and Hazardous Waste Act;
(l) R.A. No. 7076, People’s Small-Scale Mining Act;
(m) R.A. No. 7586, National Integrated Protected Areas System Act including all laws, decrees, orders, proclamations and issuances establishing protected areas;
(n) R.A. No. 7611, Strategic Environmental Plan for Palawan Act;
(o) R.A. No. 7942, Philippine Mining Act;
(p) R.A. No. 8371, Indigenous Peoples Rights Act;
(q) R.A. No. 8550, Philippine Fisheries Code;
(r) R.A. No. 8749, Clean Air Act;
(s) R.A. No. 9003, Ecological Solid Waste Management Act;
(t) R.A. No. 9072, National Caves and Cave Resource Management Act;
(u) R.A. No. 9147, Wildlife Conservation and Protection Act;
(v) R.A. No. 9175, Chainsaw Act;
(w) R.A. No. 9275, Clean Water Act;
(x) R.A. No. 9483, Oil Spill Compensation Act of 2007; and
(y) Provisions in C.A. No. 141, The Public Land Act; R.A. No. 6657, Comprehensive Agrarian Reform Law of 1988; R.A. No. 7160, Local Government Code of 1991; R.A. No. 7161, Tax Laws Incorporated in the Revised Forestry Code and Other Environmental Laws (Amending the NIRC); R.A. No. 7308, Seed Industry Development Act of 1992; R.A. No. 7900, High-Value Crops Development Act; R.A. No. 8048, Coconut Preservation Act; R.A. No. 8435, Agriculture and Fisheries Modernization Act of 1997; R.A. No. 9522, The Philippine Archipelagic Baselines Law; R.A. No. 9593, Renewable Energy Act of 2008; R.A. No. 9637, Philippine Biofuels Act; and other existing laws that relate to the conservation, development, preservation, protection and utilization of the environment and natural resources. (Section 2, Rule I)

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. (Section 5, Rule II)

"Continuing mandamus" is a writ issued by a court in an environmental case directing any agency or instrumentality of the government or officer thereof to perform an act or series of acts decreed by final judgment which shall remain effective until judgment is fully satisfied. (Section 4 [c], Rule I)

"Environmental protection order (EPO)" refers to an order issued by the court directing or enjoining any person or government agency to perform or desist from performing an act in order to protect, preserve or rehabilitate the environment. (Section 4 [d], Rule I)

"Strategic lawsuit against public participation (SLAPP)" refers to an action whether civil, criminal or administrative, brought against any person, institution or any government agency or local government unit or its officials and employees, with the intent to harass, vex, exert undue pressure or stifle any legal recourse that such person, institution or government agency has taken or may take in the enforcement of environmental laws, protection of the environment or assertion of environmental rights. (Section 4 [g], Rule I)

According to the Supreme Court, these Rules are the first of its kind in the world.

The controversial RTC judge and the matter of injunction and territorial jurisdiction in criminal cases

"Controversial Pasig City Regional Trial Court (RTC) Branch 167 presiding judge Rolando Mislang has submitted his compliance to the Supreme Court's (SC) Office of the Court Administrator (OCA) order for him to explain his issuance of 2 temporary restraining orders (TRO) that halted preliminary investigation proceedings and the filing of information in a criminal case for syndicated estafa against Globe Asiatique (GA) Realty Holding Corporation's Delfin Lee.

In a 5-page letter-compliance addressed to Court Administrator Jose Midas Marquez, Mislang stressed the existence of a "prejudicial question" that warranted his issuance of the TROs." (http://www.abs-cbnnews.com/business/09/16/11/judge-mislang-defends-tro-ga-case)

Let us revisit then the Philippine Rules of Court and pertinent jurisprudence. The Rules of Court defines preliminary injunction as “an order granted at any stage of an action or proceeding prior to the judgment or final order, requiring a party or a court, agency or a person to refrain from a particular act or acts. It may also require the performance of a particular act or acts, in which case it shall be known as a preliminary mandatory injunction.” (Section 1, Rule 58)

The purpose of a preliminary injunction is to prevent threatened or continuous irremediable injury to some of the parties before their claims can be thoroughly studied and adjudicated. Its sole aim is to preserve the status quo until the merits of the case can be heard fully. (Medina vs. Greenfield Development Corporation, 443 SCRA 150, 159).

To be entitled to injunction, plaintiff must be able to convincingly show that he is entitled to it; he has a right in esse, meaning it is present, clear and positive; it is neither future nor contingent; the act sought to be prevented or restrained would work grave, irreparable injury and great injustice upon plaintiff; and equity rests with him.

It has been settled that there is a limitation on the territorial reach of injunctions issued by the trial courts. Thus, in a recent case, the Supreme Court ruled that “respondent judge had no authority to issue a writ of preliminary injunction enjoining acts performed outside his territorial jurisdiction. Respondent judge should have known that the injunctive writs he issued were enforceable only within his territorial jurisdiction, or any part, of the Third Judicial Region. In Civil Case No. 153-0-2006, the writ of injunction, which respondent judge issued, was directed against complainant, the Secretary and the Acting Deputy Customs Commissioner for Administration whose offices in Manila are outside the territorial jurisdiction of the Regional Trial Court of Olongapo City.” (A.M. No. RTJ-07-2064. June 26, 2009)

Also, as a general rule, writ of injunction is not available in criminal cases. But this is subject to exceptions: e.g., when there is a prejudicial question which is sub judice; when the court has no jurisdiction; to afford adequate protection to the constitutional rights of the accused; when necessary for the orderly administration of justice or to avoid oppression or multiplicity of suits; when double jeopardy is apparent; etc. (See Florenz Regalado. Remedial Law Compendium, Vol. II.)

With respect to prejudicial question, it “generally comes into play in a situation where a civil action and a criminal action are both pending and there exists in the former an issue which must be preemptively resolved before the latter may proceed, because howsoever the issue raised in the civil action is resolved would be determinative juris et de jure of the guilt or innocence of the accused in the criminal case. The rationale behind the principle of prejudicial question is to avoid two conflicting decisions. It has two essential elements: (i) the civil action involves an issue similar or intimately related to the issue raised in the criminal action; and (ii) the resolution of such issue determines whether or not the criminal action may proceed.” (Sps. Jose vs. Sps. Suarez. G.R. No. 176795, June 30, 2008)

The Upgraded (2012) Hyundai Santa Fe

The family recently purchased the upgraded Hyundai Santa Fe and couldn’t be happier with its performance and comfort, particularly the two futsal players in the house. Our 2007 Kia Carens though still dutifully rendering efficient service, is already showing a few signs of ageing, so it definitely welcomes some help.

Powered by a 2.2 liter CRDI engine, equipped with the electronic variable geometry turbo system called R-eVGT, the brown metallic 2WD Santa Fe is easy to steer, quite fast from the get-go, cruises smoothly and quietly, and brakes strongly but gently. While still in the “break-in” phase, the power of Santa Fe is palpable even as it averages 7.7L-10L/100km for mixed Freeport and SCTEX driving.

But first a disclaimer: I am no techie, much less a car expert, so this is purely anecdotal even as I borrow the technical jargons from the websites of Topgear-Phils., Autoindustriya.com, the Philippine Daily Inquirer as well as Korean and Australian news agencies.

With its wide girth, the boys do not have to fight for space in the second row and they can be separated by two cupholders right down the middle. There are airvents on both sides, so does the third row. While it's relatively tall, the boys can easily get in and out of the Santa Fe.

We are still learning about its features and so far, the boys enjoy the NAVSAT capabilities of the Santa Fe (even if it just involves the distance from the house to school and vice-versa most of the time), the automatic wipers that adjust as the rain beats even harder, and the cooler right between the front seats. The touch-screen monitor also doubles as a reverse camera for easier and safer parking, while the side mirrors with signal repeaters fold with the push of a button.

According to the news, the 2012 model year upgrade for Santa Fe, “comprises a number of cosmetic enhancements both inside and out, led by the addition of silver ‘skid plates’ for the front and rear bumpers." The “refreshed seven-seat crossover also features a new chromed grille with ‘floating’ Hyundai badge, revised headlights, high-gloss black (instead of silver) roof rails.”

No mechanical changes are part of the MY2012 upgrade though. Its “R-eVGT 2.2 liter twin-cam 16-valve engine that delivers 197ps and 44.5kg/m of wall-climbing torque,” remains. It still “sports the latest electronically controlled variable geometry turbine technology and piezzo-electric crystal injectors offering precise fuel metering regardless of engine speed. Its Bosch-developed CRDi system is mated to an all-new, more compact, lighter 6-speed automatic transmission (AT) that offers a wider range of ratios and better mechanical efficiency than the outgoing 5-speed AT.” We're fine with it.

Certainly then the Santa Fe is an ideal CUV for a family with two smart and peripatetic young fellows bursting with energy. Hopefully, it will serve us in good stead for countless family adventures to come.

The role of the Solicitor General and its relationship with client-agencies

Lately, there have been news about the contradictory positions of the Philippine Securities and Exchange Commission (SEC) and the Office of the Solicitor General concerning the definition of capital for purposes of determining the shares of stocks held by foreigners, leading to testy exchanges between the officials of the two government agencies. Earlier, the Supreme Court declared that the term "capital" under Section 11, Article XII of the 1987 Constitution refers only to shares of stock entitled to vote in the election of directors, i.e., common shares, and not to the total outstanding, capital stock, i.e., both common and non-voting preferred shares, in the case of the ownership of PLDT. (See http://sc.judiciary.gov.ph/jurisprudence/2011/june2011/176579.html)

According to SEC, the SolGen did not adopt its stand that capital must refer to the total outstanding, capital stock. The SolGen agreed with the Supreme Court. Based on the news, SEC would want to remove the SolGen as its counsel and handle the case on its own, or with the help of the Office of the Government Corporate Counsel (OGCC). The question then is, can a government agency like the SEC fire SolGen as its counsel owing to alleged differences with its stand?

The case of Comelec vs. Quijano-Padilla (G. R. No. 151992) comes to mind. There the Supreme Court adroitly explained the relationship between the SolGen and its client agency, thus:

“PHOTOKINA alleges that the OSG has no standing to file the present petition since its legal position is contrary to that espoused by the majority of the COMELEC Commissioners. This is a leap to a non-sequitur conclusion. The OSG is an independent office. Its hands are not shackled to the cause of its client agency. In the discharge of its task, the primordial concern of the OSG is to see to it that the best interest of the government is upheld. This is regardless of the fact that what it perceived as the “best interest of the government” runs counter to its client agency’s position. Endowed with a broad perspective that spans the legal interest of virtually the entire government officialdom, the OSG may transcend the parochial concerns of a particular client agency and instead, promote and protect the public weal. Our ruling in Orbos vs. Civil Service Commission, is relevant, thus:

"x x x It is incumbent upon him (Solicitor General) to present to the court what he considers would legally uphold the best interest of the government although it may run counter to a client’s position. x x x.

"In the present case, it appears that after the Solicitor General studied the issues he found merit in the cause of the petitioner based on the applicable law and jurisprudence. Thus, it is his duty to represent the petitioner as he did by filing this petition. He cannot be disqualified from appearing for the petitioner even if in so doing his representation runs against the interests of the CSC.

"This is not the first time that the Office of the Solicitor General has taken a position adverse to his clients like the CSC, the National Labor Relations Commission, among others, and even the People of the Philippines. x x x”

Hence, while petitioners’ stand is contrary to that of the majority of the Commissioners, still, the OSG may represent the COMELEC as long as in its assessment, such would be for the best interest of the government. For, indeed, in the final analysis, the client of the OSG is not the agency but no less than the Republic of the Philippines in whom the plenum of sovereignty resides.”

Is mandamus an appropriate remedy to enforce government contracts?

Will a petition for mandamus be the appropriate remedy to enforce contractual obligations?

Mandamus is a command issuing from a court of law of competent jurisdiction, in the name of the state or the sovereign, directed to some inferior court, tribunal, or board, or to some corporation or person requiring the performance of a particular duty therein specified, which duty results from the official station of the party to whom the writ is directed or from operation of law. This definition recognizes the public character of the remedy, and clearly excludes the idea that it may be resorted to for the purpose of enforcing the performance of duties in which the public has no interest. The writ is a proper recourse for citizens who seek to enforce a public right and to compel the performance of a public duty, most especially when the public right involved is mandated by the Constitution. As the quoted provision instructs, mandamus will lie if the tribunal, corporation, board, officer, or person unlawfully neglects the performance of an act which the law enjoins as a duty resulting from an office, trust or station. (Uy Kiao Eng vs. Nixon Lee, G.R. No. 176831, January 15, 2010)

As a universally accepted rule, mandamus never lies to enforce the performance of contractual obligations. But it has also been held that such rule was not really absolute. So long as there is a showing of a complete, well-defined and clear legal right on the part of the petitioner to the performance of ministerial acts, the same may be enforced by mandamus. (Vda. de Serra vs. Salas, 30 SCRA 541)

Thus, where government contracts are completely performed on the part of the private party, an officer of a corporation may be compelled to perform a duty imposed upon him by law, particularly when the act of said officer has the effect of setting aside contracts already in the process of consummation. In other words, mandamus will lie only to compel the performance of a ministerial duty. (Isada vs. Bocar, G.R. No. L-33535 January 17, 1975)

Narra-logy (isang pagtatangka)

Salamat sa pagkupkop mo sa aming
Kung saan-sang dako pa ng ‘Pinas galing
Sa loob ng maraming taon bahay kang itinuring
Humubog sa pagkatao’t kamalayan ay ginising.

Dito nakatagpo ng mga kaibigang tunay
‘Di ka huhusgahan, handa laging dumamay
Anuman ang estado, anuman ang ‘yong kulay
Sa iisang bubong, sama-samang namumuhay.

Dito kahit walang pera’y di ka magugutom
Nandyan si Aling Lina, handa laging tumulong
Ibabahagi ng corridor-mates kanilang mga baon
Pagkagaling sa probinsya’y may dala pang pasalubong.

Dito P175 lang ang rent na monthly
Mayroon pang antique na ref at TV sa lobby
Nandyan si Popo kung gusto mo ng debate
O tyempuhan si Bading na may kasamang estudyante.

Sarado ang mga kwarto kapag may “open house”
Paborito sa betamax ang seryeng “Debbie Does…”
Dayaan sa larong “red dog” inaabot ng dis-oras
Gilbey’s-asin o Tanduay-Coke siguradong may amats.

Hanggang isang balita ang sa akin ay gumulantang
Ikaw daw ay nasunog, ‘di na titirahan
Isang hapong galing sa miting pilit kitang dinaanan
Kalunos-lunos na nga ang ‘yong kalagayan.

Ngayon nga’y target ka na ng demolisyon
Mga alaala na lamang tanging konsolasyon
Sana’y bigyang halaga ka, gawaran ng rekognisyon
Sa kasaysayan ng Pamantasan tunay kang institusyon!

Sample Procedure in the Conduct of Administrative Investigation – Private Corporations

1. Acts and omissions by employees meriting administrative action, under the company’s code for employee discipline, must be reported immediately and formally to the concerned employee’s immediate superior.

2. The immediate superior of the reported employee will review, study and validate the report submitted to him.

3. After establishing the validity of the submitted report, the immediate superior must endorse the same to the Department Manager, if applicable. Evidence such as affidavits, photographs and documents supporting the report, must be included.

4. The Department Manager, after a thorough evaluation and as may be deemed proper, must refer the matter to the proper disciplinary/investigating authority of the company.

4. The disciplinary authority must immediately issue a Notice to Explain (NTE) to the reported employee stating clearly the charges, purpose, reason and basis of such. It must also determine whether or not the case merits preventive suspension. If so, the NTE may include the order of preventive suspension.

5. The employee must submit his written response to the disciplinary authority within the allowable time provided as stated in NTE. If the penalty is termination, the period to answer must be at least 5 days. If the penalty is from reprimand to suspension, less than 5 days will suffice.

6. When the penalty is termination, there must always be a hearing scheduled for the purpose.

7. Upon receipt of the employee’s written explanation, and after hearing (in case of termination), the disciplinary authority will make the decision either to excuse or impose disciplinary action (DA) on the reported employee. The basis of their decision must always be in consonance with Philippine labor laws (i.e., just causes) and the code of discipline.

7. Should the disciplinary authority impose the DA, the decision will be issued to the reported employee, and explained to him or her. The decision must show that all circumstances have been considered and the grounds have been established to justify the penalty.

8. Where the disciplinary authority excuses the imposition of DA, the employee will receive a copy of the decision.