ABOGADO VS.
DENR
G.R. NO. 246209
SEPTEMBER 03, 2019
FACTS
Petitioners sought the issuance of writs of kalikasan and continuing mandamus under the Rules of
Procedure for Environmental Cases, over Panatag Shoal (Scarborough Shoal), Panganiban Reef
(Mischief Reef), and Ayungin Shoal (Second Thomas Shoal), located within the Philippines'
exclusive economic zone.
Petitioners relied on the Permanent Court of Arbitration's findings in its Arbitral Award that
Chinese fisherfolk and China's construction of artificial lands have caused severe environmental
damage to the marine environment of these areas. They alleged that their "constitutional right to a
balanced and healthful ecology"6 was being threatened and was being violated due to the
"omissions, failure, and/or refusal of Respondents to enforce Philippine laws in Panatag Shoal,
Ayungin Shoal, and Panganiban Reef."
Respondents in this case include the Department of Environment and Natural Resources,
represented by Secretary Roy A. Cimatu, the Department of Agriculture, represented by Secretary
Emmanuel Pifiol, the Bureau Of Fisheries and Aquatic Resources, represented by National
Director Eduardo B. Gongona, the Philippine Navy, represented by Flag Officer In Command
Robert Empedrad, the Philippine Coast Guard, represented by Admiral Elson E. Hermogino, the
Philippine National Police, represented by Chief Oscar Albayalde, the Philippine National Police
Maritime Group, represented by Director Rodelio B. Jocson, and the Department Of Justice,
represented by Secretary Menardo I. Guevarra.
On May 3, 2019, this Court issued a Writ of Kalikasan and ordered respondents to file a verified
return within a non-extendible period of 10 days from receipt of notice.
Respondents, through the Office of the Solicitor General, filed their Verified Return with
Comment. They argued that the Petition suffered from fatal procedural infirmities, which should
have warranted its dismissal. They alleged that the Petition failed to state a cause of action since
petitioners merely relied on the 2016 Arbitral Award as evidence and failed to attach the required
judicial affidavits of witnesses.
Respondents likewise made several factual allegations to substantiate their argument that they
complied with environmental laws and regulations in the protection and preservation of Panatag
Shoal (Scarborough Shoal), Panganiban Reef (Mischief Reef), and Ayungin Shoal (Second
Thomas Shoal). They submitted that since the case involved the conduct of foreign relations, the
remedies sought by petitioners were diplomatic and political in nature, and hence "transcend[ed]
mere enforcement of environmental laws."
During Oral Arguments
During the first round of oral arguments, petitioners' counsel Atty. Andre C. Palacios and
collaborating counsel Atty. Jose Manuel I. Diokno presented their opening statements and were
interpellated by this Court En Banc.
When the oral arguments resumed, before presenting his opening statement, Solicitor General
Calida orally manifested that he be allowed to submit as additional compliance a Manifestation
and Motion, along with its attached documents, to be admitted as part of the case records.
The documents attached to the Manifestation and Motion were affidavits executed by 19 of the 40
fisherfolk-petitioners before respondent Bureau of Fisheries and Aquatic Resources, requesting
that their signatures be withdrawn from the Petition, which they claimed they did not read and was
not explained to them before signing. They stated that they had been misinformed about the nature
of the Petition filed before this Court. Thinking that the respondents would be the foreign nationals
who caused the environmental damage, they said that they were surprised to hear that the case was
instead filed against the Bureau of Fisheries and Aquatic Resources and the Philippine Navy,
whom they considered allies.
Petitioners' counsels objected to Solicitor General’s Manifestation and Motion, arguing that it was
unethical for respondent Bureau of Fisheries and Aquatic Resources to have conferred with
petitioners without their counsels' knowledge.
Petitioners' counsels filed a Motion for Extension of Time to Confer with Clients and Obtain
Special Authority. They requested a 10-day extension to confer with their clients before
proceeding with any action that would result in the termination of the case.
The Office of the Solicitor General, on the other hand, filed a Compliance and opposed the Motion
for Extension of Time, saying that the pleading "will not cure the infirmity that the Petition was
initiated by counsel without the full knowledge and understanding of the fisherfolk-petitioners."
As such, it requested that the case be immediately dismissed.
On July 16, 2019, this Court issued a Resolution granting the Motion for Extension of Time and
noting the Compliance. It also reminded counsels for all parties to observe the rule
on subjudice and refrain from making statements about the case to the media or on social media.
Motion to Withdraw
Petitioners' counsels alleged that the remaining fisherfolk-petitioners who have yet to give their
conformity to the Petition's withdrawal, could not be contacted despite several attempts through
their mobile phones. Petitioners' counsels maintained, however, that two officers of the Kalayaan
Palawan Farmers and Fisherfolk Association would execute an affidavit narrating the
circumstances of their participation and their understanding of the Petition's contents. As such,
they requested additional time to submit the affidavit.
RULING
This Court resolves to grant the Motion to Withdraw the Petition. The Petition is dismissed,
without passing upon any of the substantive issues raised. However, we take this occasion to
discuss the following points.
Writ of Kalikasan
The nature of a writ of kalikasan is stated in Rule 7, Section 1 of the Rules of Procedure for
Environmental Cases:
SECTION 1. Nature of the writ. — 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.
Paje v. Casiño discusses the scope of the writ and the reliefs that may be granted under it:
The writ is categorized as a special civil action and was, thus, conceptualized as an
extraordinary remedy, which aims to provide judicial relief from threatened or actual
violation/s of the constitutional right to a balanced and healthful ecology of a magnitude
or degree of damage that transcends political and territorial boundaries. It is intended "to
provide a stronger defense for environmental rights through judicial efforts where
institutional arrangements of enforcement, implementation and legislation have fallen
short" and seeks "to address the potentially exponential nature of large-scale ecological
threats."
Expectedly, the Rules do not define the exact nature or degree of environmental damage
but only that it must be sufficiently grave, in terms of the territorial scope of such damage,
so as to call for the grant of this extraordinary remedy. The gravity of environmental
damage sufficient to grant the writ is, thus, to be decided on a case-to-case basis.
In civil, criminal, and administrative cases, parties are clear as to the quantum of evidence
necessary to prove their case. Civil cases require a preponderance of evidence, or "evidence which
is of greater weight, or more convincing, that which is offered in opposition to it.” Administrative
cases require substantial evidence, or "such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion, even if other minds equally reasonable might conceivably
opine otherwise." Criminal cases require proof beyond reasonable doubt, or "that degree of proof
which produces conviction in an unprejudiced mind." In petitions for the issuance of a writ of
kalikasan, however, the quantum of evidence is not specifically stated.
Other special civil actions such as certiorari, prohibition, and mandamus must be filed by a party
that is directly injured or will be injured by the act and omission complained of. However, a
petition for the writ of kalikasan may be filed on behalf of those whose right is violated. The Rules
of Procedure for Environmental Cases only requires that the public interest group is duly
accredited. Filing through representation is also allowed for other extraordinary writs such
as habeas corpus, amparo and habeas data.
Parties that seek the issuance of the writ of kalikasan, whether on their own or on others' behalf,
carry the burden of substantiating the writ's elements. Before private parties or public interest
groups may proceed with the case, they must be ready with the evidence necessary for the
determination of the writ's issuance.
A writ of kalikasan cannot and should not substitute other remedies that may be available to the
parties, whether legal, administrative, or political. Mere concern for the environment is not an
excuse to invoke this Court's jurisdiction in cases where other remedies are available:
The function of the extraordinary and equitable remedy of a Writ of Kalikasan should not
supplant other available remedies and the nature of the forums that they provide. The Writ
of Kalikasan is a highly prerogative writ that issues only when there is a showing of actual
or imminent threat and when there is such inaction on the part of the relevant
administrative bodies that will make an environmental catastrophe inevitable. It is not a
remedy that is availing when there is no actual threat or when imminence of danger is not
demonstrable. The Writ of Kalikasan thus is not an excuse to invoke judicial remedies when
there still remain administrative forums to properly address the common concern to protect
and advance ecological rights. After all, we cannot presume that only the Supreme Court
can conscientiously fulfill the ecological duties required of the entire state.
Moreover, there are other legal remedies available:
The writ of kalikasan is not an all-embracing legal remedy to be wielded like a political
tool. It is both an extraordinary and equitable remedy which assists to prevent
environmental catastrophes. It does not replace other legal remedies similarly motivated
by concern for the environment and the community's ecological welfare. Certainly, when
the petition itself alleges that remedial and preventive remedies have occurred, the
functions of the writ cease to exist. In case of disagreement, parties need to exhaust the
political and administrative arena. Only when a concrete cause of action arises out of facts
that can be proven with substantial evidence may the proper legal action be entertained.
Writ of Continuing Mandamus
A writ of continuing mandamus, on the other hand, "is a special civil action that may be availed
of 'to compel the performance of an act specifically enjoined by law.'" Rule 8, Section 1 of the
Rules of Procedure for Environmental Cases provides:
SECTION 1. Petition for continuing mandamus. — When any agency or instrumentality of
the government or officer thereof unlawfully neglects the performance of an act which the
law specifically enjoins as a duty resulting from an office, trust or station in connection
with the enforcement or violation of an environmental law rule or regulation or a right
therein, or unlawfully excludes another from the use or enjoyment of such right and there
is no other plain, speedy and adequate remedy in the ordinary course of law, the person
aggrieved thereby may file a verified petition in the proper court, alleging the facts with
certainty, attaching thereto supporting evidence, specifying that the petition concerns an
environmental law, rule or regulation, and praying that judgment be rendered
commanding the respondent to do an act or series of acts until the judgment is fully
satisfied, and to pay damages sustained by the petitioner by reason of the malicious neglect
to perform the duties of the respondent, under the law, rules or regulations. The petition
shall also contain a sworn certification of non-forum shopping.
Sufficiency in the substance of a petition for a writ of continuing mandamus requires:
... that the petition must contain substantive allegations specifically constituting an
actionable neglect or omission and must establish, at the very least, a prima facie basis for
the issuance of the writ, viz.: (1) an agency or instrumentality of government or its officer
unlawfully neglects the performance of an act or unlawfully excludes another from the use
or enjoyment of a right; (2) the act to be performed by the government agency,
instrumentality or its officer is specifically enjoined by law as a duty; (3) such duty results
from an office, trust or station in connection with the enforcement or violation of an
environmental law, rule or regulation or a right therein; and (4) there is no other plain,
speedy and adequate remedy in the course of law.
The writ is essentially a continuing order of the court, as it:
... "permits the court to retain jurisdiction after judgment in order to ensure the successful
implementation of the reliefs mandated under the court's decision" and, in order to do this,
"the court may compel the submission of compliance reports from the respondent
government agencies as well as avail of other means to monitor compliance with its
decision."
However, requiring the periodic submission of compliance reports does not mean that the court
acquires supervisory powers over administrative agencies. This interpretation would violate the
principle of the separation of powers since courts do not have the power to enforce laws, create
laws, or revise legislative actions.104 The writ should not be used to supplant executive or
legislative privileges. Neither should it be used where the remedies required are clearly political
or administrative in nature.
For this reason, every petition for the issuance of a writ of continuing mandamus must be clear on
the guidelines sought for its implementation and its termination point. Petitioners cannot merely
request the writ's issuance without specifically outlining the reliefs sought to be implemented and
the period when the submission of compliance reports may cease.
