Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 206510 September 16, 2014

MOST REV. PEDRO D. ARIGO, Vicar Apostolic of Puerto Princesa D.D.; MOST REV. DEOGRACIAS S.
INIGUEZ, JR., Bishop-Emeritus of Caloocan, FRANCES Q. QUIMPO, CLEMENTE G. BAUTISTA, JR.,
Kalikasan-PNE, MARIA CAROLINA P. ARAULLO, RENATO M. REYES, JR., Bagong Alyansang Makabayan,
HON. NERI JAVIER COLMENARES, Bayan Muna Partylist, ROLAND G. SIMBULAN, PH.D., Junk VF A
Movement, TERESITA R. PEREZ, PH.D., HON. RAYMOND V. PALATINO, Kabataan Party-list, PETER SJ.
GONZALES, Pamalakaya, GIOVANNI A. TAPANG, PH. D., Agham, ELMER C. LABOG, Kilusang Mayo Uno,
JOAN MAY E. SALVADOR, Gabriela, JOSE ENRIQUE A. AFRICA, THERESA A. CONCEPCION, MARY JOAN
A. GUAN, NESTOR T. BAGUINON, PH.D., A. EDSEL F. TUPAZ, Petitioners,
vs.
SCOTT H. SWIFT in his capacity as Commander of the US. 7th Fleet, MARK A. RICE in his capacity as
Commanding Officer of the USS Guardian, PRESIDENT BENIGNO S. AQUINO III in his capacity as
Commander-in-Chief of the Armed Forces of the Philippines, HON. ALBERT F. DEL ROSARIO, Secretary,
pepartment of Foreign Affair.s, HON. PAQUITO OCHOA, JR., Executiv~.:Secretary, Office of the President, .
HON. VOLTAIRE T. GAZMIN, Secretary, Department of National Defense, HON. RAMON JESUS P. P AJE,
Secretary, Department of Environment and Natural Resoz!rces, VICE ADMIRAL JOSE LUIS M. ALANO,
Philippine Navy Flag Officer in Command, Armed Forces of the Philippines, ADMIRAL RODOLFO D. ISO
RENA, Commandant, Philippine Coast Guard, COMMODORE ENRICO EFREN EVANGELISTA, Philippine
Coast Guard Palawan, MAJOR GEN. VIRGILIO 0. DOMINGO, Commandant of Armed Forces of the
Philippines Command and LT. GEN. TERRY G. ROBLING, US Marine Corps Forces. Pacific and Balikatan
2013 Exercise Co-Director, Respondents.

DECISION

VILLARAMA, JR, J.:

Before us is a petition for the issuance of a Writ of Kalikasan with prayer for the issuance of a Temporary
Environmental Protection Order (TEPO) under Rule 7 of A.M. No. 09-6-8-SC, otherwise known as the Rules of
Procedure for Environmental Cases (Rules), involving violations of environmental laws and regulations in relation to
the grounding of the US military ship USS Guardian over the Tubbataha Reefs.

Factual Background

The name "Tubbataha" came from the Samal (seafaring people of southern Philippines) language which means
"long reef exposed at low tide." Tubbataha is composed of two huge coral atolls - the north atoll and the south atoll -
and the Jessie Beazley Reef, a smaller coral structure about 20 kilometers north of the atolls. The reefs of
Tubbataha and Jessie Beazley are considered part of Cagayancillo, a remote island municipality of Palawan.1

In 1988, Tubbataha was declared a National Marine Park by virtue of Proclamation No. 306 issued by President
Corazon C. Aquino on August 11, 1988. Located in the middle of Central Sulu Sea, 150 kilometers southeast of
Puerto Princesa City, Tubbataha lies at the heart of the Coral Triangle, the global center of marine biodiversity.

In 1993, Tubbataha was inscribed by the United Nations Educational Scientific and Cultural Organization
(UNESCO) as a World Heritage Site. It was recognized as one of the Philippines' oldest ecosystems, containing
excellent examples of pristine reefs and a high diversity of marine life. The 97,030-hectare protected marine park is
also an important habitat for internationally threatened and endangered marine species. UNESCO cited
Tubbataha's outstanding universal value as an important and significant natural habitat for in situ conservation of
biological diversity; an example representing significant on-going ecological and biological processes; and an area
of exceptional natural beauty and aesthetic importance.2
On April 6, 2010, Congress passed Republic Act (R.A.) No. 10067,3 otherwise known as the "Tubbataha Reefs
Natural Park (TRNP) Act of 2009" "to ensure the protection and conservation of the globally significant economic,
biological, sociocultural, educational and scientific values of the Tubbataha Reefs into perpetuity for the enjoyment
of present and future generations." Under the "no-take" policy, entry into the waters of TRNP is strictly regulated and
many human activities are prohibited and penalized or fined, including fishing, gathering, destroying and disturbing
the resources within the TRNP. The law likewise created the Tubbataha Protected Area Management Board
(TPAMB) which shall be the sole policy-making and permit-granting body of the TRNP.

The USS Guardian is an Avenger-class mine countermeasures ship of the US Navy. In December 2012, the US
Embassy in the Philippines requested diplomatic clearance for the said vessel "to enter and exit the territorial waters
of the Philippines and to arrive at the port of Subic Bay for the purpose of routine ship replenishment, maintenance,
and crew liberty."4 On January 6, 2013, the ship left Sasebo, Japan for Subic Bay, arriving on January 13, 2013 after
a brief stop for fuel in Okinawa, Japan. 1wphi 1

On January 15, 2013, the USS Guardian departed Subic Bay for its next port of call in Makassar, Indonesia. On
January 17, 2013 at 2:20 a.m. while transiting the Sulu Sea, the ship ran aground on the northwest side of South
Shoal of the Tubbataha Reefs, about 80 miles east-southeast of Palawan. No cine was injured in the incident, and
there have been no reports of leaking fuel or oil.

On January 20, 2013, U.S. 7th Fleet Commander, Vice Admiral Scott Swift, expressed regret for the incident in a
press statement.5 Likewise, US Ambassador to the Philippines Harry K. Thomas, Jr., in a meeting at the Department
of Foreign Affairs (DFA) on February 4, "reiterated his regrets over the grounding incident and assured Foreign
Affairs Secretazy Albert F. del Rosario that the United States will provide appropriate compensation for damage to
the reef caused by the ship."6 By March 30, 2013, the US Navy-led salvage team had finished removing the last
piece of the grounded ship from the coral reef.

On April 1 7, 2013, the above-named petitioners on their behalf and in representation of their respective
sector/organization and others, including minors or generations yet unborn, filed the present petition agairtst Scott
H. Swift in his capacity as Commander of the US 7th Fleet, Mark A. Rice in his capacity as Commanding Officer of
the USS Guardian and Lt. Gen. Terry G. Robling, US Marine Corps Forces, Pacific and Balikatan 2013 Exercises
Co-Director ("US respondents"); President Benigno S. Aquino III in his capacity as Commander-in-Chief of the
Armed Forces of the Philippines (AFP), DF A Secretary Albert F. Del Rosario, Executive Secretary Paquito Ochoa,
Jr., Secretary Voltaire T. Gazmin (Department of National Defense), Secretary Jesus P. Paje (Department of
Environment and Natural Resources), Vice-Admiral Jose Luis M. Alano (Philippine Navy Flag Officer in Command,
AFP), Admiral Rodolfo D. Isorena (Philippine Coast Guard Commandant), Commodore Enrico Efren Evangelista
(Philippine Coast Guard-Palawan), and Major General Virgilio 0. Domingo (AFP Commandant), collectively the
"Philippine respondents."

The Petition

Petitioners claim that the grounding, salvaging and post-salvaging operations of the USS Guardian cause and
continue to cause environmental damage of such magnitude as to affect the provinces of Palawan, Antique, Aklan,
Guimaras, Iloilo, Negros Occidental, Negros Oriental, Zamboanga del Norte, Basilan, Sulu, and Tawi-Tawi, which
events violate their constitutional rights to a balanced and healthful ecology. They also seek a directive from this
Court for the institution of civil, administrative and criminal suits for acts committed in violation of environmental laws
and regulations in connection with the grounding incident.

Specifically, petitioners cite the following violations committed by US respondents under R.A. No. 10067:
unauthorized entry (Section 19); non-payment of conservation fees (Section 21 ); obstruction of law enforcement
officer (Section 30); damages to the reef (Section 20); and destroying and disturbing resources (Section 26[g]).
Furthermore, petitioners assail certain provisions of the Visiting Forces Agreement (VFA) which they want this Court
to nullify for being unconstitutional.

The numerous reliefs sought in this case are set forth in the final prayer of the petition, to wit: WHEREFORE, in view
of the foregoing, Petitioners respectfully pray that the Honorable Court: 1. Immediately issue upon the filing of this
petition a Temporary Environmental Protection Order (TEPO) and/or a Writ of Kalikasan, which shall, in particular,
a. Order Respondents and any person acting on their behalf, to cease and desist all operations over the
Guardian grounding incident;

b. Initially demarcating the metes and bounds of the damaged area as well as an additional buffer zone;

c. Order Respondents to stop all port calls and war games under 'Balikatan' because of the absence of clear
guidelines, duties, and liability schemes for breaches of those duties, and require Respondents to assume
responsibility for prior and future environmental damage in general, and environmental damage under the
Visiting Forces Agreement in particular.

d. Temporarily define and describe allowable activities of ecotourism, diving, recreation, and limited
commercial activities by fisherfolk and indigenous communities near or around the TRNP but away from the
damaged site and an additional buffer zone;

2. After summary hearing, issue a Resolution extending the TEPO until further orders of the Court;

3. After due proceedings, render a Decision which shall include, without limitation:

a. Order Respondents Secretary of Foreign Affairs, following the dispositive portion of Nicolas v. Romulo, "to
forthwith negotiate with the United States representatives for the appropriate agreement on [environmental
guidelines and environmental accountability] under Philippine authorities as provided in Art. V[] of the VFA ...
"

b. Direct Respondents and appropriate agencies to commence administrative, civil, and criminal
proceedings against erring officers and individuals to the full extent of the law, and to make such
proceedings public;

c. Declare that Philippine authorities may exercise primary and exclusive criminal jurisdiction over erring
U.S. personnel under the circumstances of this case;

d. Require Respondents to pay just and reasonable compensation in the settlement of all meritorious claims
for damages caused to the Tubbataha Reef on terms and conditions no less severe than those applicable to
other States, and damages for personal injury or death, if such had been the case;

e. Direct Respondents to cooperate in providing for the attendance of witnesses and in the collection and
production of evidence, including seizure and delivery of objects connected with the offenses related to the
grounding of the Guardian;

f. Require the authorities of the Philippines and the United States to notify each other of the disposition of all
cases, wherever heard, related to the grounding of the Guardian;

g. Restrain Respondents from proceeding with any purported restoration, repair, salvage or post salvage
plan or plans, including cleanup plans covering the damaged area of the Tubbataha Reef absent a just
settlement approved by the Honorable Court;

h. Require Respondents to engage in stakeholder and LOU consultations in accordance with the Local
Government Code and R.A. 10067;

i. Require Respondent US officials and their representatives to place a deposit to the TRNP Trust Fund
defined under Section 17 of RA 10067 as a bona .fide gesture towards full reparations;

j. Direct Respondents to undertake measures to rehabilitate the areas affected by the grounding of the
Guardian in light of Respondents' experience in the Port Royale grounding in 2009, among other similar
grounding incidents;
 k. Require Respondents to regularly publish on a quarterly basis and in the name of transparency and
accountability such environmental damage assessment, valuation, and valuation methods, in all stages of
negotiation;

l. Convene a multisectoral technical working group to provide scientific and technical support to the TPAMB;

m. Order the Department of Foreign Affairs, Department of National Defense, and the Department of
Environment and Natural Resources to review the Visiting Forces Agreement and the Mutual Defense
Treaty to consider whether their provisions allow for the exercise of erga omnes rights to a balanced and
healthful ecology and for damages which follow from any violation of those rights;

n. Narrowly tailor the provisions of the Visiting Forces Agreement for purposes of protecting the damaged
areas of TRNP;

o. Declare the grant of immunity found in Article V ("Criminal Jurisdiction") and Article VI of the Visiting
Forces Agreement unconstitutional for violating equal protection and/or for violating the preemptory norm of
nondiscrimination incorporated as part of the law of the land under Section 2, Article II, of the Philippine
Constitution;

p. Allow for continuing discovery measures;

q. Supervise marine wildlife rehabilitation in the Tubbataha Reefs in all other respects; and

4. Provide just and equitable environmental rehabilitation measures and such other reliefs as are just and
equitable under the premises.7 (Underscoring supplied.)

Since only the Philippine respondents filed their comment8 to the petition, petitioners also filed a motion for early
resolution and motion to proceed ex parte against the US respondents.9

Respondents' Consolidated Comment

In their consolidated comment with opposition to the application for a TEPO and ocular inspection and production
orders, respondents assert that: ( 1) the grounds relied upon for the issuance of a TEPO or writ of Kalikasan have
become fait accompli as the salvage operations on the USS Guardian were already completed; (2) the petition is
defective in form and substance; (3) the petition improperly raises issues involving the VFA between the Republic of
the Philippines and the United States of America; and ( 4) the determination of the extent of responsibility of the US
Government as regards the damage to the Tubbataha Reefs rests exdusively with the executive branch.

The Court's Ruling

As a preliminary matter, there is no dispute on the legal standing of petitioners to file the present petition.

Locus standi is "a right of appearance in a court of justice on a given question."10 Specifically, it is "a party's personal
and substantial interest in a case where he has sustained or will sustain direct injury as a result" of the act being
challenged, and "calls for more than just a generalized grievance."11 However, the rule on standing is a procedural
matter which this Court has relaxed for non-traditional plaintiffs like ordinary citizens, taxpayers and legislators when
the public interest so requires, such as when the subject matter of the controversy is of transcendental importance,
of overreaching significance to society, or of paramount public interest.12

In the landmark case of Oposa v. Factoran, Jr.,13 we recognized the "public right" of citizens to "a balanced and
healthful ecology which, for the first time in our constitutional history, is solemnly incorporated in the fundamental
law." We declared that the right to a balanced and healthful ecology need not be written in the Constitution for it is
assumed, like other civil and polittcal rights guaranteed in the Bill of Rights, to exist from the inception of mankind
and it is an issue of transcendental importance with intergenerational implications. Such right carries with it the
1w phi 1

correlative duty to refrain from impairing the environment.14

On the novel element in the class suit filed by the petitioners minors in Oposa, this Court ruled that not only do
ordinary citizens have legal standing to sue for the enforcement of environmental rights, they can do so in
representation of their own and future generations. Thus:

Petitioners minors assert that they represent their generation as well as generations yet unborn. We find no difficulty
in ruling that they can, for themselves, for others of their generation and for the succeeding generations, file a class
suit. Their personality to sue in behalf of the succeeding generations can only be based on the concept of
intergenerational responsibility insofar as the right to a balanced and healthful ecology is concerned. Such a right,
as hereinafter expounded, considers the "rhythm and harmony of nature." Nature means the created world in its
entirety. Such rhythm and harmony indispensably include, inter alia, the judicious disposition, utilization,
management, renewal and conservation of the country's forest, mineral, land, waters, fisheries, wildlife, off-shore
areas and other natural resources to the end that their exploration, development and utilization be equitably
accessible to the present a:: well as future generations. Needless to say, every generation has a responsibility to the
next to preserve that rhythm and harmony for the full 1:njoyment of a balanced and healthful ecology. Put a little
differently, 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.15 (Emphasis supplied.)

The liberalization of standing first enunciated in Oposa, insofar as it refers to minors and generations yet unborn, is
now enshrined in the Rules which allows the filing of a citizen suit in environmental cases. The provision on citizen
suits in the Rules "collapses the traditional rule on personal and direct interest, on the principle that humans are
stewards of nature."16

Having settled the issue of locus standi, we shall address the more fundamental question of whether this Court has
jurisdiction over the US respondents who did not submit any pleading or manifestation in this case.

The immunity of the State from suit, known also as the doctrine of sovereign immunity or non-suability of the
State,17is expressly provided in Article XVI of the 1987 Constitution which states:

Section 3. The State may not be sued without its consent.

In United States of America v. Judge Guinto,18 we discussed the principle of state immunity from suit, as follows:

The rule that a state may not be sued without its consent, now expressed in Article XVI, Section 3, of the 1987
Constitution, is one of the generally accepted principles of international law that we have adopted as part of the law
of our land under Article II, Section 2. x x x.

Even without such affirmation, we would still be bound by the generally accepted principles of international law
under the doctrine of incorporation. Under this doctrine, as accepted by the majority of states, such principles are
deemed incorporated in the law of every civilized state as a condition and consequence of its membership in the
society of nations. Upon its admission to such society, the state is automatically obligated to comply with these
principles in its relations with other states.

As applied to the local state, the doctrine of state immunity is based on the justification given by Justice Holmes that
''there can be no legal right against the authority which makes the law on which the right depends." [Kawanakoa v.
Polybank, 205 U.S. 349] There are other practical reasons for the enforcement of the doctrine. In the case of the
foreign state sought to be impleaded in the local jurisdiction, the added inhibition is expressed in the maxim par in
parem, non habet imperium. All states are sovereign equals and cannot assert jurisdiction over one another. A
contrary disposition would, in the language of a celebrated case, "unduly vex the peace of nations." [De Haber v.
Queen of Portugal, 17 Q. B. 171]

While the doctrine appears to prohibit only suits against the state without its consent, it is also applicable to
complaints filed against officials of the state for acts allegedly performed by them in the discharge of their duties.
The rule is that if the judgment against such officials will require the state itself to perform an affirmative act to satisfy
the same,. such as the appropriation of the amount needed to pay the damages awarded against them, the suit
must be regarded as against the state itself although it has not been formally impleaded. [Garcia v. Chief of Staff, 16
SCRA 120] In such a situation, the state may move to dismiss the comp.taint on the ground that it has been filed
without its consent.19 (Emphasis supplied.)
Under the American Constitution, the doctrine is expressed in the Eleventh Amendment which reads:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or
prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign
State.

In the case of Minucher v. Court of Appeals,20 we further expounded on the immunity of foreign states from the
jurisdiction of local courts, as follows:

The precept that a State cannot be sued in the courts of a foreign state is a long-standing rule of customary
international law then closely identified with the personal immunity of a foreign sovereign from suit and, with the
emergence of democratic states, made to attach not just to the person of the head of state, or his representative, but
also distinctly to the state itself in its sovereign capacity. If the acts giving rise to a suit arc those of a foreign
government done by its foreign agent, although not necessarily a diplomatic personage, but acting in his official
capacity, the complaint could be barred by the immunity of the foreign sovereign from suit without its consent. Suing
a representative of a state is believed to be, in effect, suing the state itself. The proscription is not accorded for the
benefit of an individual but for the State, in whose service he is, under the maxim -par in parem, non habet imperium
-that all states are soverr~ign equals and cannot assert jurisdiction over one another. The implication, in broad
terms, is that if the judgment against an official would rec 1uire the state itself to perform an affirmative act to satisfy
the award, such as the appropriation of the amount needed to pay the damages decreed against him, the suit must
be regarded as being against the state itself, although it has not been formally impleaded.21 (Emphasis supplied.)

In the same case we also mentioned that in the case of diplomatic immunity, the privilege is not an immunity from
the observance of the law of the territorial sovereign or from ensuing legal liability; it is, rather, an immunity from the
exercise of territorial jurisdiction.22

In United States of America v. Judge Guinto,23 one of the consolidated cases therein involved a Filipino employed at
Clark Air Base who was arrested following a buy-bust operation conducted by two officers of the US Air Force, and
was eventually dismissed from his employment when he was charged in court for violation of R.A. No. 6425. In a
complaint for damages filed by the said employee against the military officers, the latter moved to dismiss the case
on the ground that the suit was against the US Government which had not given its consent. The RTC denied the
motion but on a petition for certiorari and prohibition filed before this Court, we reversed the RTC and dismissed the
complaint. We held that petitioners US military officers were acting in the exercise of their official functions when
they conducted the buy-bust operation against the complainant and thereafter testified against him at his trial. It
follows that for discharging their duties as agents of the United States, they cannot be directly impleaded for acts
imputable to their principal, which has not given its consent to be sued.

This traditional rule of State immunity which exempts a State from being sued in the courts of another State without
the former's consent or waiver has evolved into a restrictive doctrine which distinguishes sovereign and
governmental acts (Jure imperil") from private, commercial and proprietary acts (Jure gestionis). Under the
restrictive rule of State immunity, State immunity extends only to acts Jure imperii. The restrictive application of
State immunity is proper only when the proceedings arise out of commercial transactions of the foreign sovereign,
its commercial activities or economic affairs.24

In Shauf v. Court of Appeals,25 we discussed the limitations of the State immunity principle, thus:

It is a different matter where the public official is made to account in his capacity as such for acts contrary to law and
injurious to the rights of plaintiff. As was clearly set forth by JustiGe Zaldivar in Director of the Bureau of
Telecommunications, et al. vs. Aligaen, etc., et al. : "Inasmuch as the State authorizes only legal acts by its officers,
unauthorized acts of government officials or officers are not acts of the State, and an action against the officials or
officers by one whose rights have been invaded or violated by such acts, for the protection of his rights, is not a suit
against the State within the rule of immunity of the State from suit. In the same tenor, it has been said that an action
at law or suit in equity against a State officer or the director of a State department on the ground that, while claiming
to act for the State, he violates or invades the personal and property rights of the plaintiff, under an unconstitutional
act or under an assumption of authority which he does not have, is not a suit against the State within the
constitutional provision that the State may not be sued without its consent." The rationale for this ruling is that the
doctrine of state immunity cannot be used as an instrument for perpetrating an injustice.
 xxxx

The aforecited authorities are clear on the matter. They state that the doctrine of immunity from suit will not apply
and may not be invoked where the public official is being sued in his private and personal capacity as an ordinary
citizen. The cloak of protection afforded the officers and agents of the government is removed the moment they are
sued in their individual capacity. This situation usually arises where the public official acts without authority or in
excess of the powers vested in him. It is a well-settled principle of law that a public official may be liable in his
personal private capacity for whatever damage he may have caused by his act done with malice and in bad faith, or
beyond the scope of his authority or jurisdiction.26 (Emphasis supplied.) In this case, the US respondents were sued
in their official capacity as commanding officers of the US Navy who had control and supervision over the USS
Guardian and its crew. The alleged act or omission resulting in the unfortunate grounding of the USS Guardian on
the TRNP was committed while they we:re performing official military duties. Considering that the satisfaction of a
judgment against said officials will require remedial actions and appropriation of funds by the US government, the
suit is deemed to be one against the US itself. The principle of State immunity therefore bars the exercise of
jurisdiction by this Court over the persons of respondents Swift, Rice and Robling.

During the deliberations, Senior Associate Justice Antonio T. Carpio took the position that the conduct of the US in
this case, when its warship entered a restricted area in violation of R.A. No. 10067 and caused damage to the TRNP
reef system, brings the matter within the ambit of Article 31 of the United Nations Convention on the Law of the Sea
(UNCLOS). He explained that while historically, warships enjoy sovereign immunity from suit as extensions of their
flag State, Art. 31 of the UNCLOS creates an exception to this rule in cases where they fail to comply with the rules
and regulations of the coastal State regarding passage through the latter's internal waters and the territorial sea.

According to Justice Carpio, although the US to date has not ratified the UNCLOS, as a matter of long-standing
policy the US considers itself bound by customary international rules on the "traditional uses of the oceans" as
codified in UNCLOS, as can be gleaned from previous declarations by former Presidents Reagan and Clinton, and
the US judiciary in the case of United States v. Royal Caribbean Cruise Lines, Ltd.27

The international law of the sea is generally defined as "a body of treaty rules arid customary norms governing the
uses of the sea, the exploitation of its resources, and the exercise of jurisdiction over maritime regimes. It is a
branch of public international law, regulating the relations of states with respect to the uses of the oceans."28 The
UNCLOS is a multilateral treaty which was opened for signature on December 10, 1982 at Montego Bay, Jamaica. It
was ratified by the Philippines in 1984 but came into force on November 16, 1994 upon the submission of the 60th
ratification.

The UNCLOS is a product of international negotiation that seeks to balance State sovereignty (mare clausum) and
the principle of freedom of the high seas (mare liberum).29 The freedom to use the world's marine waters is one of
the oldest customary principles of international law.30 The UNCLOS gives to the coastal State sovereign rights in
varying degrees over the different zones of the sea which are: 1) internal waters, 2) territorial sea, 3) contiguous
zone, 4) exclusive economic zone, and 5) the high seas. It also gives coastal States more or less jurisdiction over
foreign vessels depending on where the vessel is located.31

Insofar as the internal waters and territorial sea is concerned, the Coastal State exercises sovereignty, subject to the
UNCLOS and other rules of international law. Such sovereignty extends to the air space over the territorial sea as
well as to its bed and subsoil.32

In the case of warships,33 as pointed out by Justice Carpio, they continue to enjoy sovereign immunity subject to the
following exceptions:

Article 30
Non-compliance by warships with the laws and regulations of the coastal State

If any warship does not comply with the laws and regulations of the coastal State concerning passage through the
territorial sea and disregards any request for compliance therewith which is made to it, the coastal State may require
it to leave the territorial sea immediately.

Article 31
Responsibility of the flag State for damage caused by a warship
or other government ship operated for non-commercial purposes

The flag State shall bear international responsibility for any loss or damage to the coastal State resulting from the
non-compliance by a warship or other government ship operated for non-commercial purposes with the laws and
regulations of the coastal State concerning passage through the territorial sea or with the provisions of this
Convention or other rules of international law.

Article 32
Immunities of warships and other government ships operated for non-commercial purposes

With such exceptions as are contained in subsection A and in articles 30 and 31, nothing in this Convention affects
the immunities of warships and other government ships operated for non-commercial purposes. (Emphasis
supplied.) A foreign warship's unauthorized entry into our internal waters with resulting damage to marine resources
is one situation in which the above provisions may apply. But what if the offending warship is a non-party to the
UNCLOS, as in this case, the US?

An overwhelming majority - over 80% -- of nation states are now members of UNCLOS, but despite this the US, the
world's leading maritime power, has not ratified it.

While the Reagan administration was instrumental in UNCLOS' negotiation and drafting, the U.S. delegation
ultimately voted against and refrained from signing it due to concerns over deep seabed mining technology transfer
provisions contained in Part XI. In a remarkable, multilateral effort to induce U.S. membership, the bulk of UNCLOS
member states cooperated over the succeeding decade to revise the objection.able provisions. The revisions
satisfied the Clinton administration, which signed the revised Part XI implementing agreement in 1994. In the fall of
1994, President Clinton transmitted UNCLOS and the Part XI implementing agreement to the Senate requesting its
advice and consent. Despite consistent support from President Clinton, each of his successors, and an ideologically
diverse array of stakeholders, the Senate has since withheld the consent required for the President to internationally
bind the United States to UNCLOS.

While UNCLOS cleared the Senate Foreign Relations Committee (SFRC) during the 108th and 110th Congresses,
its progress continues to be hamstrung by significant pockets of political ambivalence over U.S. participation in
international institutions. Most recently, 111 th Congress SFRC Chairman Senator John Kerry included "voting out"
UNCLOS for full Senate consideration among his highest priorities. This did not occur, and no Senate action has
been taken on UNCLOS by the 112th Congress.34

Justice Carpio invited our attention to the policy statement given by President Reagan on March 10, 1983 that the
US will "recognize the rights of the other , states in the waters off their coasts, as reflected in the convention
[UNCLOS], so long as the rights and freedom of the United States and others under international law are recognized
by such coastal states", and President Clinton's reiteration of the US policy "to act in a manner consistent with its
[UNCLOS] provisions relating to traditional uses of the oceans and to encourage other countries to do likewise."
Since Article 31 relates to the "traditional uses of the oceans," and "if under its policy, the US 'recognize[s] the rights
of the other states in the waters off their coasts,"' Justice Carpio postulates that "there is more reason to expect it to
recognize the rights of other states in their internal waters, such as the Sulu Sea in this case."

As to the non-ratification by the US, Justice Carpio emphasizes that "the US' refusal to join the UN CLOS was
centered on its disagreement with UN CLOS' regime of deep seabed mining (Part XI) which considers the oceans
and deep seabed commonly owned by mankind," pointing out that such "has nothing to do with its [the US']
acceptance of customary international rules on navigation."

It may be mentioned that even the US Navy Judge Advocate General's Corps publicly endorses the ratification of
the UNCLOS, as shown by the following statement posted on its official website:

The Convention is in the national interest of the United States because it establishes stable maritime zones,
including a maximum outer limit for territorial seas; codifies innocent passage, transit passage, and archipelagic sea
lanes passage rights; works against "jurisdictiomtl creep" by preventing coastal nations from expanding their own
maritime zones; and reaffirms sovereign immunity of warships, auxiliaries anJ government aircraft.
 xxxx

Economically, accession to the Convention would support our national interests by enhancing the ability of the US to
assert its sovereign rights over the resources of one of the largest continental shelves in the world. Further, it is the
Law of the Sea Convention that first established the concept of a maritime Exclusive Economic Zone out to 200
nautical miles, and recognized the rights of coastal states to conserve and manage the natural resources in this
Zone.35

We fully concur with Justice Carpio's view that non-membership in the UNCLOS does not mean that the US will
disregard the rights of the Philippines as a Coastal State over its internal waters and territorial sea. We thus expect
the US to bear "international responsibility" under Art. 31 in connection with the USS Guardian grounding which
adversely affected the Tubbataha reefs. Indeed, it is difficult to imagine that our long-time ally and trading partner,
which has been actively supporting the country's efforts to preserve our vital marine resources, would shirk from its
obligation to compensate the damage caused by its warship while transiting our internal waters. Much less can we
comprehend a Government exercising leadership in international affairs, unwilling to comply with the UNCLOS
directive for all nations to cooperate in the global task to protect and preserve the marine environment as provided in
Article 197, viz:

Article 197
Cooperation on a global or regional basis

States shall cooperate on a global basis and, as appropriate, on a regional basis, directly or through competent
international organizations, in formulating and elaborating international rules, standards and recommended practices
and procedures consistent with this Convention, for the protection and preservation of the marine environment,
taking into account characteristic regional features.

In fine, the relevance of UNCLOS provisions to the present controversy is beyond dispute. Although the said treaty
upholds the immunity of warships from the jurisdiction of Coastal States while navigating the.latter's territorial sea,
the flag States shall be required to leave the territorial '::;ea immediately if they flout the laws and regulations of the
Coastal State, and they will be liable for damages caused by their warships or any other government vessel
operated for non-commercial purposes under Article 31.

Petitioners argue that there is a waiver of immunity from suit found in the VFA. Likewise, they invoke federal statutes
in the US under which agencies of the US have statutorily waived their immunity to any action. Even under the
common law tort claims, petitioners asseverate that the US respondents are liable for negligence, trespass and
nuisance.

We are not persuaded.

The VFA is an agreement which defines the treatment of United States troops and personnel visiting the Philippines
to promote "common security interests" between the US and the Philippines in the region. It provides for the
guidelines to govern such visits of military personnel, and further defines the rights of the United States and the
Philippine government in the matter of criminal jurisdiction, movement of vessel and aircraft, importation and
exportation of equipment, materials and supplies.36 The invocation of US federal tort laws and even common law is
thus improper considering that it is the VF A which governs disputes involving US military ships and crew navigating
Philippine waters in pursuance of the objectives of the agreement.

As it is, the waiver of State immunity under the VF A pertains only to criminal jurisdiction and not to special civil
actions such as the present petition for issuance of a writ of Kalikasan. In fact, it can be inferred from Section 17,
Rule 7 of the Rules that a criminal case against a person charged with a violation of an environmental law is to be
filed separately:

SEC. 17. Institution of separate 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.

In any case, it is our considered view that a ruling on the application or non-application of criminal jurisdiction
provisions of the VF A to US personnel who may be found responsible for the grounding of the USS Guardian,
would be premature and beyond the province of a petition for a writ of Kalikasan. We also find it unnecessary at this
point to determine whether such waiver of State immunity is indeed absolute. In the same vein, we cannot grant
damages which have resulted from the violation of environmental laws. The Rules allows the recovery of damages,
including the collection of administrative fines under R.A. No. 10067, in a separate civil suit or that deemed instituted
with the criminal action charging the same violation of an environmental law.37

Section 15, Rule 7 enumerates the reliefs which may be granted in a petition for issuance of a writ of Kalikasan, to
wit:

SEC. 15. Judgment.-Within sixty (60) days from the time the petition is submitted for decision, the court shall render
judgment granting or denying the privilege of the writ of kalikasan.

The reliefs that may be granted under the writ are the following:

(a) Directing respondent to permanently cease and desist from committing acts or neglecting the
performance of a duty in violation of environmental laws resulting in environmental destruction or damage;

(b) Directing the respondent public official, govemment agency, private person or entity to protect, preserve,
rehabilitate or restore the environment;

(c) Directing the respondent public official, government agency, private person or entity to monitor strict
compliance with the decision and orders of the court;

(d) Directing the respondent public official, government agency, or private person or entity to make periodic
reports on the execution of the final judgment; and

(e) Such other reliefs which relate to the right of the people to a balanced and healthful ecology or to the
protection, preservation, rehabilitation or restoration of the environment, except the award of damages to
individual petitioners. (Emphasis supplied.)

We agree with respondents (Philippine officials) in asserting that this petition has become moot in the sense that the
salvage operation sought to be enjoined or restrained had already been accomplished when petitioners sought
recourse from this Court. But insofar as the directives to Philippine respondents to protect and rehabilitate the coral
reef stn icture and marine habitat adversely affected by the grounding incident are concerned, petitioners are
entitled to these reliefs notwithstanding the completion of the removal of the USS Guardian from the coral reef.
However, we are mindful of the fact that the US and Philippine governments both expressed readiness to negotiate
and discuss the matter of compensation for the damage caused by the USS Guardian. The US Embassy has also
declared it is closely coordinating with local scientists and experts in assessing the extent of the damage and
appropriate methods of rehabilitation.

Exploring avenues for settlement of environmental cases is not proscribed by the Rules. As can be gleaned from the
following provisions, mediation and settlement are available for the consideration of the parties, and which dispute
resolution methods are encouraged by the court, to wit:

RULE3

xxxx

SEC. 3. Referral to mediation.-At the start of the pre-trial conference, the court shall inquire from the parties if they
have settled the dispute; otherwise, the court shall immediately refer the parties or their counsel, if authorized by
their clients, to the Philippine Mediation Center (PMC) unit for purposes of mediation. If not available, the court shall
refer the case to the clerk of court or legal researcher for mediation.

Mediation must be conducted within a non-extendible period of thirty (30) days from receipt of notice of referral to
mediation.

The mediation report must be submitted within ten (10) days from the expiration of the 30-day period.
SEC. 4. Preliminary conference.-If mediation fails, the court will schedule the continuance of the pre-trial. Before the
scheduled date of continuance, the court may refer the case to the branch clerk of court for a preliminary conference
for the following purposes:

(a) To assist the parties in reaching a settlement;

xxxx

SEC. 5. Pre-trial conference; consent decree.-The judge shall put the parties and their counsels under oath, and
they shall remain under oath in all pre-trial conferences.

The judge shall exert best efforts to persuade the parties to arrive at a settlement of the dispute. The judge may
issue a consent decree approving the agreement between the parties in accordance with law, morals, public order
and public policy to protect the right of the people to a balanced and healthful ecology.

xxxx

SEC. 10. Efforts to settle.- The court shall endeavor to make the parties to agree to compromise or settle in
accordance with law at any stage of the proceedings before rendition of judgment. (Underscoring supplied.)

The Court takes judicial notice of a similar incident in 2009 when a guided-missile cruiser, the USS Port Royal, ran
aground about half a mile off the Honolulu Airport Reef Runway and remained stuck for four days. After spending
$6.5 million restoring the coral reef, the US government was reported to have paid the State of Hawaii $8.5 million in
settlement over coral reef damage caused by the grounding.38

To underscore that the US government is prepared to pay appropriate compensation for the damage caused by the
USS Guardian grounding, the US Embassy in the Philippines has announced the formation of a US interdisciplinary
scientific team which will "initiate discussions with the Government of the Philippines to review coral reef
rehabilitation options in Tubbataha, based on assessments by Philippine-based marine scientists." The US team
intends to "help assess damage and remediation options, in coordination with the Tubbataha Management Office,
appropriate Philippine government entities, non-governmental organizations, and scientific experts from Philippine
universities."39

A rehabilitation or restoration program to be implemented at the cost of the violator is also a major relief that may be
obtained under a judgment rendered in a citizens' suit under the Rules, viz:

RULES

SECTION 1. Reliefs in a citizen suit.-If warranted, the court may grant to the plaintiff proper reliefs which shall
include the protection, preservation or rehabilitation of the environment and the payment of attorney's fees, costs of
suit and other litigation expenses. It may also require the violator to submit a program of rehabilitation or restoration
of the environment, the costs of which shall be borne by the violator, or to contribute to a special trust fund for that
purpose subject to the control of the court.1w phi 1

In the light of the foregoing, the Court defers to the Executive Branch on the matter of compensation and
rehabilitation measures through diplomatic channels. Resolution of these issues impinges on our relations with
another State in the context of common security interests under the VFA. It is settled that "[t]he conduct of the
foreign relations of our government is committed by the Constitution to the executive and legislative-"the political" --
departments of the government, and the propriety of what may be done in the exercise of this political power is not
subject to judicial inquiry or decision."40

On the other hand, we cannot grant the additional reliefs prayed for in the petition to order a review of the VFA and
to nullify certain immunity provisions thereof.

As held in BAYAN (Bagong Alyansang Makabayan) v. Exec. Sec. Zamora,41 the VFA was duly concurred in by the
Philippine Senate and has been recognized as a treaty by the United States as attested and certified by the duly
authorized representative of the United States government. The VF A being a valid and binding agreement, the
parties are required as a matter of international law to abide by its terms and provisions.42 The present petition under
the Rules is not the proper remedy to assail the constitutionality of its provisions. WHEREFORE, the petition for the
issuance of the privilege of the Writ of Kalikasan is hereby DENIED.

No pronouncement as to costs.

SO ORDERED

You are here: Home 2015 February 2014 Case Digest: Arigo v. Swift

2014 CASE DIGEST: ARIGO V. SWIFT

Published by admin on February 21, 2015 | Leave a response

MOST REV. PEDRO ARIGO, et. al., Petitioners,

vs.

SCOTT H. SWIFT, et. al., Respondents.

G.R. No. 206510 September 16, 2014

PONENTE: Villarama

TOPIC: Writ of kalikasan, UNCLOS, Immunity from suit

FACTS:

The USS Guardian is an Avenger-class mine countermeasures ship of the US Navy. In

December 2012, the US Embassy in the Philippines requested diplomatic clearance for the said vessel
 to enter and exit the territorial waters of the Philippines and to arrive at the port of Subic Bay for the
purpose of routine ship replenishment, maintenance, and crew liberty. On January 6, 2013, the ship
left Sasebo, Japan for Subic Bay, arriving on January 13, 2013 after a brief stop for fuel in Okinawa,
Japan.

On January 15, 2013, the USS Guardian departed Subic Bay for its next port of call in
Makassar, Indonesia. On January 17, 2013 at 2:20 a.m. while transiting the Sulu Sea, the ship ran
aground on the northwest side of South Shoal of the Tubbataha Reefs, about 80 miles east-southeast
of Palawan. No one was injured in the incident, and there have been no reports of leaking fuel or oil.

Petitioners claim that the grounding, salvaging and post-salvaging operations of the USS
Guardian cause and continue to cause environmental damage of such magnitude as to affect the
provinces of Palawan, Antique, Aklan, Guimaras, Iloilo, Negros Occidental, Negros Oriental,
Zamboanga del Norte, Basilan, Sulu, and Tawi-Tawi, which events violate their constitutional rights
to a balanced and healthful ecology.

ISSUES:

1. Whether or not petitioners have legal standing.

2. Whether or not US respondents may be held liable for damages caused by USS Guardian.
3. Whether or not the waiver of immunity from suit under VFA applies in this case.

HELD:

First issue: YES.

Petitioners have legal standing

Locus standi is a right of appearance in a court of justice on a given question. Specifically, it

is a partys personal and substantial interest in a case where he has sustained or will sustain direct
injury as a result of the act being challenged, and calls for more than just a generalized grievance.
However, the rule on standing is a procedural matter which this Court has relaxed for non-traditional
plaintiffs like ordinary citizens, taxpayers and legislators when the public interest so requires, such as
when the subject matter of the controversy is of transcendental importance, of overreaching
significance to society, or of paramount public interest.

In the landmark case of Oposa v. Factoran, Jr., we recognized the public right of citizens to
a balanced and healthful ecology which, for the first time in our constitutional history, is solemnly
incorporated in the fundamental law. We declared that the right to a balanced and healthful ecology
need not be written in the Constitution for it is assumed, like other civil and polittcal rights
guaranteed in the Bill of Rights, to exist from the inception of mankind and it is an issue of
transcendental importance with intergenerational implications. Such right carries with it the
correlative duty to refrain from impairing the environment.

On the novel element in the class suit filed by the petitioners minors in Oposa, this Court
ruled that not only do ordinary citizens have legal standing to sue for the enforcement of
environmental rights, they can do so in representation of their own and future generations.
Second issue: YES.

The US respondents were sued in their official capacity as commanding officers of the US
Navy who had control and supervision over the USS Guardian and its crew. The alleged act or
omission resulting in the unfortunate grounding of the USS Guardian on the TRNP was committed
while they were performing official military duties. Considering that the satisfaction of a judgment
against said officials will require remedial actions and appropriation of funds by the US government,
the suit is deemed to be one against the US itself. The principle of State immunity therefore bars the
exercise of jurisdiction by this Court over the persons of respondents Swift, Rice and Robling.

During the deliberations, Senior Associate Justice Antonio T. Carpio took the position that
the conduct of the US in this case, when its warship entered a restricted area in violation of R.A. No.
10067 and caused damage to the TRNP reef system, brings the matter within the ambit of Article 31 of
the United Nations Convention on the Law of the Sea (UNCLOS). He explained that while
historically, warships enjoy sovereign immunity from suit as extensions of their flag
State, Art. 31 of the UNCLOS creates an exception to this rule in cases where they fail to
comply with the rules and regulations of the coastal State regarding passage through
the latters internal waters and the territorial sea.

G.R. No. 147465 January 30, 2002

METROPOLITAN MANILA DEVELOPMENT AUTHORITY, petitioner,

vs.
JANCOM ENVIRONMENTAL CORPORATION and JANCOM INTERNATIONAL DEVELOPMENT PROJECTS
PTY. LIMITED OF AUSTRALIA, respondents.

DECISION

MELO, J.:

Before the Court is a petition for review on certiorari under Rule 45 of the Rules of Civil Procedure filed by petitioner
Metropolitan Manila Development Authority (MMDA), seeking to reverse and set aside the November 13, 2000
decision of the Court of Appeals declaring valid and perfected the waste management contract entered into by the
Republic of the Philippines, represented by the Secretary of National Resources and the Executive Committee to
oversee the build-operate-transfer implementation of solid waste management projects, and JANCOM
Environmental Corporation.

The pertinent facts are as follows:

In 1994, then President Fidel V. Ramos issued Presidential Memorandum Order No. 202 creating the Executive
Committee (EXECOM) to oversee the BOT implementation of solid waste management projects, headed by the
Chairman of the MMDA and the Cabinet Officer for Regional Development-National Capital Region (CORD-NCR).
The EXECOM was to oversee and develop waste-to-energy projects for the waste disposal sites in San Mateo,
Rizal and Carmona, Cavite under the build-operate-transfer (BOT) scheme. The terms of reference for the waste-to-
energy projects provided that its proponents should have the capability to establish municipal solid waste thermal
plants using incineration technology. This type of technology was selected because of its alleged advantages of
greatly reduced waste volume, prolongation of the service life of the disposal site, and generation of electricity.
While eleven (11) proponents submitted their pre-qualification documents, most failed to comply with the
requirements under Section 5.4 of the Implementing Rules and Regulations (IRR) of Republic Act No. 6957,
otherwise known as the Build-Operate-Transfer Law. On July 21, 1995, the Pre-qualification, Bids and Awards
Committee (PBAC) recommended the pre-qualification of three proponents, namely: i) JANCOM International Pty.
Ltd.; ii) First Philippine International W-E Managers; and iii) PACTECH Development Corporation. On July 26,
1995, the EXECOM approved the recommendation of the PBAC. On July 27, 1995, MMDA forwarded to the
Investment Coordinating Committee (ICC) Secretariat the pre-feasibility study on the privatization of the Carmona
and San Mateo landfill sites. The project was later presented to the ICC-Technical Board (ICC-TB) and then
endorsed to the ICC-Cabinet Committee (ICC-CC).

On May 2, 1996, the PBAC conducted a pre-bid conference where it required the three pre-qualified bidders to
submit, within ninety (90) days, their bid proposals. On August 2, 1996, JANCOM and First Philippines requested for
an extension of time to submit their bids. PACTECH, on the other hand, withdrew from the bidding.

Subsequently, JANCOM entered into a partnership with Asea Brown Boveri (ABB) to form JANCOM Environmental
Corporation while First Philippines formed a partnership with OGDEN. Due to the change in the composition of the
proponents, particularly in their technology partners and contractors, the PBAC conducted a post pre-qualification
evaluation.

During the second bid conference, the bid proposals of First Philippines for the Carmona site and JANCOM for the
San Mateo site were found to be complete and responsive. Consequently, on February 12, 1997, JANCOM and
First Philippines were declared the winning bidders, respectively, for the San Mateo and the Carmona projects.

In a letter dated February 27, 1997, then MMDA Chairman Prospero I. Oreta informed JANCOMs Chief Executive
Officer Jay Alparslan that the EXECOM had approved the PBAC recommendation to award to JANCOM the San
Mateo Waste-to-Energy Project on the basis of the final Evaluation Report declaring JANCOM International Ltd.,
Pty., together with Asea Brown Boveri (ABB), as the sole complying (winning) bidder for the San Mateo Waste
Disposal site, subject to negotiation and mutual approval of the terms and conditions of the contract of award. The
letter also notified Alparslan that the EXECOM had created a negotiating team composed of Secretary General
Antonio Hidalgo of the Housing and Urban Development Coordinating Council, Director Ronald G. Fontamillas,
General Manager Roberto Nacianceno of MMDA, and Atty. Eduardo Torres of the host local government unit to
work out and finalize the contract award. Chairman Oreta requested JANCOM to submit to the EXECOM the
composition of its own negotiating team.

Thereafter, after a series of meetings and consultations between the negotiating teams of EXECOM and JANCOM,
a draft BOT contract was prepared and presented to the Presidential Task Force on Solid Waste Management.

On December 19, 1997, the BOT Contract for the waste-to-energy project was signed between JANCOM and the
Philippine Government, represented by the Presidential Task Force on Solid Waste Management through DENR
Secretary Victor Ramos, CORD-NCR Chairman Dionisio dela Serna, and MMDA Chairman Prospero Oreta.

On March 5, 1998, the BOT contract was submitted to President Ramos for approval but this was too close to the
end of his term which expired without him signing the contract. President Ramos, however, endorsed the contract to
incoming President Joseph E. Estrada.

With the change of administration, the composition of the EXECOM also changed. Memorandum Order No. 19
appointed the Chairman of the Presidential Committee on Flagship Programs and Project to be the EXECOM
chairman. Too, Republic Act No. 8749, otherwise known as the Clean Air Act of 1999, was passed by Congress.
And due to the clamor of residents of Rizal province, President Estrada had, in the interim, also ordered the closure
of the San Mateo landfill. Due to these circumstances, the Greater Manila Solid Waste Management Committee
adopted a resolution not to pursue the BOT contract with JANCOM. Subsequently, in a letter dated November 4,
1999, Roberto Aventajado, Chairman of the Presidential Committee on Flagship Programs and Project informed Mr.
Jay Alparslan, Chairman of JANCOM, that due to changes in policy and economic environment (Clean Air Act and
non-availability of the San Mateo landfill), the implementation of the BOT contract executed and signed between
JANCOM and the Philippine Government would no longer be pursued. The letter stated that other alternative
implementation arrangements for solid waste management for Metro Manila would be considered instead.
JANCOM appealed to President Joseph Estrada the position taken by the EXECOM not to pursue the BOT Contract
executed and signed between JANCOM and the Philippine Government, refuting the cited reasons for non-
implementation. Despite the pendency of the appeal, MMDA, on February 22, 2000, caused the publication in a
newspaper of an invitation to pre-qualify and to submit proposals for solid waste management projects for Metro
Manila. JANCOM thus filed with the Regional Trial Court of Pasig a petition for certiorari to declare i) the resolution
of the Greater Metropolitan Manila Solid Waste Management Committee disregarding the BOT Contract and ii) the
acts of MMDA calling for bids and authorizing a new contract for Metro Manila waste management, as illegal,
unconstitutional, and void; and for prohibition to enjoin the Greater Metropolitan Manila Solid Waste Management
Committee and MMDA from implementing the assailed resolution and disregarding the Award to, and the BOT
contract with, JANCOM, and from making another award in its place. On May 29, 2000, the trial court rendered a
decision, the dispositive portion of which reads:

WHEREFORE, in view of the foregoing, the Court hereby renders judgment in favor of petitioners JANCOM
ENVIRONMENTAL CORPORATION, and JANCOM INTERNATIONAL DEVELOPMENT PROJECTS PTY.,
LIMITED OF AUSTRALIA, and against respondent GREATER METROPOLITAN MANILA SOLID WASTE
MANAGEMENT COMM., and HON. ROBERTO N. AVENTAJADO, in his Capacity as Chairman of the said
Committee, METRO MANILA DEVELOPMENT AUTHORITY and HON. JEJOMAR C. BINAY, in his capacity as
Chairman of said Authority, declaring the Resolution of respondent Greater Metropolitan Manila Solid Waste
Management Committee disregarding petitioners BOT Award Contract and calling for bids for and authorizing a
new contract for the Metro Manila waste management ILLEGAL and VOID.

Moreover, respondents and their agents are hereby PROHIBITED and ENJOINED from implementing the aforesaid
Resolution and disregarding petitioners BOT Award Contract and from making another award in its place.

Let it be emphasized that this Court is not preventing or stopping the government from implementing infrastructure
projects as it is aware of the proscription under PD 1818. On the contrary, the Court is paving the way for the
necessary and modern solution to the perennial garbage problem that has been the major headache of the
government and in the process would serve to attract more investors in the country.

(Rollo,p. 159.)

Instead of appealing the decision, MMDA filed a special civil action for certiorari with prayer for a temporary
restraining order with the Court of Appeals which was later docketed therein as CA-G.R. SP No. 59021. The
appellate court not only required JANCOM to comment on the petition, it also granted MMDAs prayer for a
temporary restraining order. During the pendency of the petition for certiorari, JANCOM moved for the execution of
the RTC decision, which was opposed by MMDA. However, the RTC granted the motion for execution on the
ground that its decision had become final since MMDA had not appealed the same to the Court of Appeals. MMDA
moved to declare respondents and the RTC judge in contempt of court, alleging that the RTCs grant of execution
was abuse of and interference with judicial rules and processes.

On November 13, 2001, the Court of Appeals dismissed the petition in CA-G.R. SP No. 59021 and a companion
case, CA-G.R. SP No. 60303.

MMDAs motion for reconsideration of said decision having been denied, MMDA filed the instant petition, alleging
that the Court of Appeals gravely erred in finding that:

1) There is a valid and binding contract between the Republic of the Philippines and JANCOM given that: a)
the contract does not bear the signature of the President of the Philippines; b) the conditions precedent
specified in the contract were not complied with; and c) there was no valid notice of award.

2) The MMDA had not seasonably appealed the Decision of the lower court via a petition for certiorari.

Before taking up the substantive issue in question, we shall first dispose of the question as to whether it is fatal to
petitioners cause, that rather than appealing the trial courts decision to the Court of Appeals, it instead filed a
petition for certiorari. While petitioner claims that the trial courts decision never became final by virtue of its having
appealed by certiorari to the Court of Appeals, the trial court ruled that petitioners failure to file an appeal has made
its decision final and executory. At bottom, the question involves a determination of the propriety of petitioners
choice of the remedy of certiorari in questioning the decision of the trial court.
Section 1, Rule 65 of the 1997 Rules of Civil Procedure provides:

Section 1. Petition for certiorari. When any tribunal, board or officer exercising judicial or quasi-judicial functions
has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess
of jurisdiction, and there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law, a
person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying
that judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer, and granting
such incidental reliefs as law and justice may require.

The petition shall be accompanied by a certified true copy of the judgment, order, or resolution subject thereof,
copies of all pleadings and documents relevant and pertinent thereto, and a sworn certification of non-forum
shopping as provided in the third paragraph of section 3, Rule 46.

Plain it is from a reading of the above provision that certiorari will lie only where a court has acted without or in
excess of jurisdiction or with grave abuse of discretion. If the court has jurisdiction over the subject matter and of the
person, its rulings upon all questions involved are within its jurisdiction, however irregular or erroneous these may
be, they cannot be corrected by certiorari. Correction may be obtained only by an appeal from the final decision.

Verily, Section 1, Rule 41 of the 1997 Rules of Civil Procedure provides:

SEC. 1. Subject of appeal. An appeal may be taken from a judgment or final order that completely disposes of the
case or of a particular matter therein when declared by these Rules to be appealable.

xxx xxx xxx

In all the above instances where the judgment or final order is not appealable, the aggrieved party may file an
appropriate special civil action under Rule 65.

There can be no dispute that the trial courts May 29, 2000 decision was a final order or judgment which MMDA
should have appealed, had it been so minded. In its decision, the trial court disposed of the main controversy by
"declaring the Resolution of respondent Greater Metropolitan Manila Solid Waste Management Committee
disregarding petitioners BOT Award Contract and calling for bids for and authorizing a new contract for the Metro
Manila waste management ILLEGAL and VOID." This ruling completely disposed of the controversy between
MMDA and JANCOM. In BA Finance Corporation vs. CA (229 SCRA 5667 [1994]), we held that a "final" order or
judgment is one which "disposes of the whole subject matter or terminates a particular proceeding or action, leaving
nothing to be done but to enforce by execution what has been determined." An order or judgment is deemed final
when it finally disposes of the pending action so that nothing more can be done with it in the trial court. In other
words, a final order is that which gives an end to the litigation. A final order or judgment finally disposes of,
adjudicates, or determines the rights, or some right or rights of the parties, either on the entire controversy or on
some definite and separate branch thereof, and concludes them until it is reversed or set aside. Where no issue is
left for future consideration, except the fact of compliance or non-compliance with the terms of the judgment or doer,
such judgment or order is final and appealable (Investments, Inc. vs. Court of Appeals, 147 SCRA 334 [1987]).

However, instead of appealing the decision, MMDA resorted to the extraordinary remedy of certiorari, as a mode of
obtaining reversal of the judgment. This cannot be done. The judgment was not in any sense null and void ab
initio, incapable of producing any legal effects whatever, which could be resisted at any time and in any court it was
attempted. It was a judgment which could or may have suffered from some substantial error in procedure or in
findings of fact or of law, and on that account, it could have been reversed or modified on appeal. But since it was
not appealed, it became final and has thus gone beyond the reach of any court to modify in any substantive aspect.
The remedy to obtain reversal or modification of the judgment on the merits is appeal. This is true even if the error,
or one of the errors, ascribed to the court rendering the judgment is its lack of jurisdiction over the subject matter, or
the exercise of power in excess thereof, or grave abuse of discretion in the findings of fact or of law set out in the
decision. The existence and availability of the right of appeal proscribes a resort to certiorari, because one of the
requirements for availment of the latter remedy is precisely that "there should be no appeal" (Mercado vs. CA, 162
SCRA 75 [1988]). As incisively observed by the Court of Appeals:

The special civil action for certiorari is available only when there is no appeal nor any plain, speedy and adequate
remedy in the ordinary course of law (Sec. 1, rule 65, id.)
Admittedly, appeal could have been taken from the assailed RTC decision. However, petitioners maintain that
appeal is not a speedy remedy because the RTC decision prohibiting them from conducting a bidding for a new
waste disposal project has adverse and serious effects on the citys garbage situation.

Nevertheless, the RTC decision is not immediately executory. Only judgments in actions for injunction, receivership,
accounting and support and such other judgments as are now or may hereafter be declared to be immediately
executory shall be enforced after their rendition and shall not be stayed by an appeal therefrom, unless otherwise
ordered by the trial court (Sec. 4, rule 39, id.).

Since the RTC decision is not immediately executory, appeal would have stayed its execution. Consequently, the
adverse effects of said decision will not visit upon petitioners during the appeal. In other words, appeal is a plain,
speedy and adequate remedy in the ordinary course of the law.

But as no appeal was taken within the reglementary period, the RTC decision had become final and executory.
Well-settled is the rule that the special civil action for certiorari may not be invoked as a substitute for the remedy of
appeal (BF Corporation vs. Court of Appeals, 288 SCRA 267). Therefore, the extraordinary remedy of certiorari
does not lie.

Moreover, petitioners instituted the instant action without filing a motion for reconsideration of the RTC decision.
Doctrinal is the rule that certiorari will not lie unless a motion for reconsideration is first filed before the respondent
tribunal to allow it an opportunity to correct its errors (Zapanta vs. NLRC, 292 SCRA 580).

(Rollo, p. 47-48.)

Admittedly, there are instances where the extraordinary remedy of certiorari may be resorted to despite the
availability of an appeal. In Ruiz, Jr. vs. Court of Appeals (220 SCRA 490 [1993]), we held:

Considered extraordinary, [certiorari] is made available only when there is no appeal, nor any plain, speedy or
adequate remedy in the ordinary course of the law (Rule 65, Rules of Court, Section 1). The long line of decisions
denying the petition for certiorari, either before appeal was availed or specially in instances where the appeal period
has lapsed, far outnumbers the instances when certiorari was given due course. The few significant exceptions
were: when public welfare and the advancement of public policy dictate; or when the broader interests of justice so
require, or when the writs issued are null . . . or when the questioned order amounts to an oppressive exercise of
judicial authority.

In the instant case, however, MMDA has not sufficiently established the existence of any fact or reason to justify its
resort to the extraordinary remedy of certiorari. Neither does the record show that the instant case, indeed, falls
under any of the exceptions aforementioned.

The Court thus holds that the Court of Appeals did not err in declaring that the trial courts decision has become final
due to the failure of MMDA to perfect an appeal within the reglementary period.

With the foregoing disquisition, it would appear unnecessarily to discuss and resolve the substantive issue posed
before the Court. However, the procedural flaw notwithstanding, the Court deems it judicious to take cognizance of
the substantive question, if only to put petitioners mind to rest.

In its second assignment of errors, petitioner MMDA contends that there is no valid and binding contract between
the Republic of the Philippines and respondents because: a) the BOT contract does not bear the signature of the
President of the Philippines; b) the conditions precedent specified in the contract were not complied with; and that c)
there was no valid notice of award.

These contentions hold no water.

Under Article 1305 of the Civil Code, "[a] contract is a meeting of minds between two persons whereby one binds
himself, with respect to the other, to give something or to render some service." A contract undergoes three distinct
stages preparation or negotiation, its perfection, and finally, its consummation. Negotiation begins from the time
the prospective contracting parties manifest their interest in the contract and ends at the moment of agreement of
the parties. The perfection or birth of the contract takes place when the parties agree upon the essential elements of
the contract. The last stage is the consummation of the contract wherein the parties fulfill or perform the terms
agreed upon in the contract, culminating in the extinguishment thereof (Bugatti vs. CA, 343 SCRA 335 [2000]).
Article 1315 of the Civil Code, provides that a contract is perfected by mere consent. Consent, on the other hand, is
manifested by the meeting of the offer and the acceptance upon the thing and the cause which are to constitute the
contract (See Article 1319, Civil Code). In the case at bar, the signing and execution of the contract by the parties
clearly show that, as between the parties, there was a concurrence of offer and acceptance with respect to the
material details of the contract, thereby giving rise to the perfection of the contract. The execution and signing of the
contract is not disputed by the parties. As the Court of Appeals aptly held:

[C]ontrary to petitioners insistence that there was no perfected contract, the meeting of the offer and acceptance
upon the thing and the cause, which are to constitute the contract (Arts. 1315 and 1319, New Civil Code), is borne
out by the records.

Admittedly, when petitioners accepted private respondents bid proposal (offer), there was, in effect, a meeting of
the minds upon the object (waste management project) and the cause (BOT scheme). Hence, the perfection of the
contract. In City of Cebu vs. Heirs of Candido Rubi (306 SCRA 108), the Supreme Court held that "the effect of an
unqualified acceptance of the offer or proposal of the bidder is to perfect a contract, upon notice of the award to the
bidder.

(Rollo, p. 48-49.)

In fact, in asserting that there is no valid and binding contract between the parties, MMDA can only allege that there
was no valid notice of award; that the contract does not bear the signature of the President of the Philippines; and
that the conditions precedent specified in the contract were not complied with.

In asserting that the notice of award to JANCOM is not a proper notice of award, MMDA points to the Implementing
Rules and Regulations of Republic Act No. 6957, otherwise known as the BOT Law, which require that i) prior to the
notice of award, an Investment Coordinating Committee clearance must first be obtained; and ii) the notice of award
indicate the time within which the awardee shall submit the prescribed performance security, proof of commitment of
equity contributions and indications of financing resources.

Admittedly, the notice of award has not complied with these requirements. However, the defect was cured by the
subsequent execution of the contract entered into and signed by authorized representatives of the parties; hence, it
may not be gainsaid that there is a perfected contract existing between the parties giving to them certain rights and
obligations (conditions precedents) in accordance with the terms and conditions thereof. We borrow the words of the
Court of Appeals:

Petitioners belabor the point that there was no valid notice of award as to constitute acceptance of private
respondents offer. They maintain that former MMDA Chairman Oretas letter to JANCOM EC dated February 27,
1997 cannot be considered as a valid notice of award as it does not comply with the rules implementing Rep. Act
No. 6957, as amended. The argument is untenable.

The fact that Chairman Oretas letter informed JANCOM EC that it was the "sole complying (winning) bidder for the
San Mateo project leads to no other conclusion than that the project was being awarded to it. But assuming that said
notice of award did not comply with the legal requirements, private respondents cannot be faulted therefore as it
was the government representatives duty to issue the proper notice.

In any event, petitioners, as successors of those who previously acted for the government (Chairman Oreta, et al),
are estopped from assailing the validity of the notice of award issued by the latter. As private respondents correctly
observed, in negotiating on the terms and conditions of the BOT contract and eventually signing said contract, the
government had led private respondents to believe that the notice of award given to them satisfied all the
requirement of the law.

While the government cannot be estopped by the erroneous acts of its agents, nevertheless, petitioners may not
now assail the validity of the subject notice of award to the prejudice of private respondents. Until the institution of
the original action before the RTC, invalidity of the notice of award was never invoked as a ground for termination of
the BOT contract. In fact, the reasons cited for terminating the San Mateo project, per Chairman Aventajados letter
to JANCOM EC dated November 4, 1999, were its purported non-implementability and non-viability on account of
supervening events, e.g., passage of the Clean Air Act, etc.

(Rollo, p. 49-50.)

MMDA also points to the absence of the Presidents signature as proof that the same has not yet been perfected.
Not only that, the authority of the signatories to bind the Republic has even been put to question. Firstly, it is pointed
out that Memorandum Order No. 202 creating the Executive Committee to oversee the BOT implementation of solid
waste management projects only charged the officials thereof with the duty of recommending to the President the
specific project to be implemented under the BOT scheme for both San Mateo and Carmona sites. Hence, it is
concluded that the signatories, CORD-NCR Chairman Dionisio dela Serna and MMDA Chairman Prospero Oreta,
had no authority to enter into any waste management project for and in behalf of the Government. Secondly,
Section 59 of Executive Order No. 292 is relied upon as authority for the proposition that presidential approval is
necessary for the validity of the contract.

The first argument conveniently overlooks the fact that then Secretary of Environment and Natural Resources Victor
Ramos was likewise a signatory to the contract. While dela Serna and Oreta may not have had any authority to sign,
the Secretary of Environment and Natural Resources has such an authority. In fact, the authority of the signatories
to the contract was not denied by the Solicitor General. Moreover, as observed by the Court of Appeals, "[i]t was not
alleged, much less shown, that those who signed in behalf of the Republic had acted beyond the scope of their
authority."

In truth, the argument raised by MMDA does not focus on the lack of authority of the signatories, but on the amount
involved as placing the contract beyond the authority of the signatories to approve. Section 59 of Executive Order
No. 292 reads:

Section 59. Contracts for Approval by the President. Contracts for infrastructure projects, including contracts for the
supply of materials and equipment to be used in said projects, which involve amounts above the ceilings provided in
the preceding section shall be approved by the President: Provided, That the President may, when conditions so
warrant, and upon recommendation of the National Economic and Development Authority, revise the aforesaid
ceilings of approving authority.

However, the Court of Appeals trenchantly observed in this connection:

As regards the Presidents approval of infrastructure projects required under Section 59 of Executive Order No. 292,
said section does not apply to the BOT contract in question. Sec. 59 should be correlated with Sec. 58 of Exec.
Order No. 292. Said sections read:

SECTION 58. Ceiling for Infrastructure Contracts. The following shall be the ceilings for all civil works,
construction and other contracts for infrastructure projects, including supply contracts for said projects, awarded
through public bidding or through negotiation, which may be approved by the Secretaries of Public Works and
Highways, Transportation and Communications, Local Government with respect to Rural Road improvement Project
and governing boards of government-owned or controlled corporations:

xxx xxx xxx

Save as provided for above, the approval ceilings assigned to the departments/agencies involved in national
infrastructure and construction projects shall remain at the levels provided in existing laws, rules and regulations.

Contrary to petitioners claim that all infrastructure contracts require the Presidents approval (Petition, p. 16), Sec.
59 provides that such approval is required only in infrastructure contracts involving amounts exceeding the ceilings
set in Sec. 58. Significantly, the infrastructure contracts treated in Sec. 58 pertain only to those which may be
approved by the Secretaries of Public Works and Highways, Transportation and Communications, Local
Government (with respect to Rural Road Improvement Project) and the governing boards of certain government-
owned or controlled corporations. Consequently, the BOT contract in question, which was approved by the DENR
Secretary and the EXCOM Chairman and Co-Chairman, is not covered by Exec. Order No. 292.
(Rollo, p. 51-52.)

The provision pertinent to the authority of the Secretary of Environment and Natural Resources would actually be
Section 1 of Executive Order No. 380, Series of 1989 which provides that "The Secretaries of all Departments and
Governing Boards of government-owned or controlled corporations [except the Secretaries of Public Works and
Highways, Transportation and Communication, and Local Government with respect to Rural Road Improvement
projects] can enter into publicly bidded contracts regardless of amount (See also Section 515, Government
Accounting and Auditing Manual Volume I)." Consequently, MMDA may not claim that the BOT contract is not
valid and binding due to the lack of presidential approval.

Significantly, the contract itself provides that the signature of the President is necessary only for its effectivity (not
perfection), pursuant to Article 19 of the contract, which reads:

This contract shall become effective upon approval by the President of the Republic of the Philippines pursuant to
existing laws subject to the condition, precedent in Article 18. This contract shall remain in full force and effect for
twenty-five (25) years subject to renewal for another twenty-five (25) years from the date of Effectivity. Such renewal
will be subject to mutual agreement of the parties and approval of the President of the Republic of the Philippines.

(Rollo, p. 94.)

Stated differently, while the twenty-five year effectivity period of the contract has not yet started to run because of
the absence of the Presidents signature, the contract has, nonetheless, already been perfected.

As to the contention that there is no perfected contract due to JANCOMs failure to comply with several conditions
precedent, the same is, likewise, unmeritorious. Article 18 of the BOT contract reads:

ARTICLE 18
CONDITIONS PRECEDENT

xxx

18.2.1. The BOT COMPANY hereby undertakes to provide the following within 2 months from execution of this
Contract as an effective document:

a) sufficient proof of the actual equity contributions from the proposed shareholders of the BOT COMPANY
in a total amount not less than PHP500,000,000 in accordance with the BOT Law and the implementing
rules and regulations;

b) sufficient proof of financial commitment from a lending institution sufficient to cover total project cost in
accordance with the BOT Law and the implementing rules and regulations;

c) to support its obligation under this Contract, the BOT COMPANY shall submit a security bond to the
CLIENT in accordance with the form and amount required under the BOT Law.

xxx

18.2.3 Completion of Documentary Requirements as per Schedule 4 by the BOT Company

As clearly stated in Article 18, JANCOM undertook to comply with the stated conditions within 2 months from
execution of the Contract as an effective document. Since the President of the Philippines has not yet affixed his
signature on the contract, the same has not yet become an effective document. Thus, the two-month period within
which JANCOM should comply with the conditions has not yet started to run. It cannot thus be said that JANCOM
has already failed to comply with the "conditions precedent" mandated by the contract. By arguing that "failure [of
JANCOM] to comply with the conditions results in the failure of a contract or prevents the judicial relation from
coming into existence," MMDA reads into the contract something which is not contemplated by the parties. If the
terms of a contract are clear and leave no doubt upon the intention of the contracting parties, the literal meaning of
its stipulations shall control (Art. 1370, Civil Code).
We, therefore, hold that the Court of Appeals did not err when it declared the existence of a valid and perfected
contract between the Republic of the Philippines and JANCOM. There being a perfected contract, MMDA cannot
revoke or renounce the same without the consent of the other. From the moment of perfection, the parties are
bound not only to the fulfillment of what has been expressly stipulated but also to all the consequences which,
according to their nature, may be in keeping with good faith, usage, and law (Article 1315, Civil Code). The contract
has the force of law between the parties and they are expected to abide in good faith by their respective contractual
commitments, not weasel out of them. Just as nobody can be forced to enter into a contract, in the same manner,
once a contract is entered into, no party can renounce it unilaterally or without the consent of the other. It is a
general principle of law that no one may be permitted to change his mind or disavow and go back upon his own
acts, or to proceed contrary thereto, to the prejudice of the other party. Nonetheless, it has to be repeated that
although the contract is a perfected one, it is still ineffective or unimplementable until and unless it is approved by
the President.

Moreover, if after a perfected and binding contract has been executed between the parties, it occurs to one of them
to allege some defect therein as reason for annulling it, the alleged defect must be conclusively proven, since the
validity and the fulfillment of contracts cannot be left to the will of one of the contracting parties. In the case at bar,
the reasons cited by MMDA for not pushing through with the subject contract were: 1) the passage of the Clean Air
Act, which allegedly bans incineration; 2) the closure of the San Mateo landfill site; and 3) the costly tipping fee.
These reasons are bereft of merit

Once again, we make reference to the insightful declarations of the Court of Appeals:

Sec. 20 of the Clean Air Act pertinently reads:

SECTION 20. Ban on Incineration. Incineration, hereby defined as the burning of municipal, bio-chemical and
hazardous wastes, which process emits poisonous and toxic fumes, is hereby prohibited: x x x."

Section 20 does not absolutely prohibit incineration as a mode of waste disposal; rather only those burning
processes which emit poisonous and toxic fumes are banned.

As regards the projected closure of the San Mateo landfill vis--vis the implementability of the contract, Art. 2.3
thereof expressly states that "[i]n the event the project Site is not delivered x x x, the Presidential task Force on
Solid Waste Management (PTFSWM) and the Client, shall provide within a reasonable period of time, a suitable
alternative acceptable to the BOT COMPANY."

With respect to the alleged financial non-viability of the project because the MMDA and the local government units
cannot afford the tipping fees under the contract, this circumstance cannot, by itself, abrogate the entire agreement. 1w phi 1

Doctrinal is the rule that neither the law nor the courts will extricate a party from an unwise or undesirable contract,
or stipulation for that matter, he or she entered into with full awareness of its consequences (Opulencia vs. CA, 293
SCRA 385). Indeed, the terms and conditions of the subject contract were arrived at after due negotiations between
the parties thereto.

(Rollo, p. 54.)

WHEREFORE, premises considered, the petition is hereby DISMISSED for lack of merit and the decision of the
Court of Appeals in CA-G.R. SP No. 59021 dated November 13, 2001 AFFIRMED. No costs.

SO ORDERED.

Vitug, Panganiban, and Sandoval-Gutierrez, JJ., concur.

Carpio, J., no part. I was former counsel to a foreign partner of Jancom Environmental Corporation.
G.R. No. 158290 October 23, 2006

HILARION M. HENARES, JR., VICTOR C. AGUSTIN, ALFREDO L. HENARES, DANIEL L. HENARES, ENRIQUE
BELO HENARES, and CRISTINA BELO HENARES, petitioners,
vs.
LAND TRANSPORTATION FRANCHISING AND REGULATORY BOARD and DEPARTMENT OF
TRANSPORTATION AND COMMUNICATIONS, respondents.

RESOLUTION

QUISUMBING, J.:

Petitioners challenge this Court to issue a writ of mandamus commanding respondents Land Transportation
Franchising and Regulatory Board (LTFRB) and the Department of Transportation and Communications (DOTC) to
require public utility vehicles (PUVs) to use compressed natural gas (CNG) as alternative fuel.

Citing statistics from the Metro Manila Transportation and Traffic Situation Study of 1996,1 the Environmental
Management Bureau (EMB) of the National Capital Region,2 a study of the Asian Development Bank,3 the Manila
Observatory4 and the Department of Environment and Natural Resources5 (DENR) on the high growth and low
turnover in vehicle ownership in the Philippines, including diesel-powered vehicles, two-stroke engine powered
motorcycles and their concomitant emission of air pollutants, petitioners attempt to present a compelling case for
judicial action against the bane of air pollution and related environmental hazards.

Petitioners allege that the particulate matters (PM) complex mixtures of dust, dirt, smoke, and liquid droplets,
varying in sizes and compositions emitted into the air from various engine combustions have caused detrimental
effects on health, productivity, infrastructure and the overall quality of life. Petitioners particularly cite the effects of
certain fuel emissions from engine combustion when these react to other pollutants. For instance, petitioners aver,
with hydrocarbons, oxide of nitrogen (NOx) creates smog; with sulfur dioxide, it creates acid rain; and with ammonia,
moisture and other compounds, it reacts to form nitric acid and harmful nitrates. Fuel emissions also cause
retardation and leaf bleaching in plants. According to petitioner, another emission, carbon monoxide (CO), when not
completely burned but emitted into the atmosphere and then inhaled can disrupt the necessary oxygen in blood.
With prolonged exposure, CO affects the nervous system and can be lethal to people with weak hearts.6

Petitioners add that although much of the new power generated in the country will use natural gas while a number of
oil and coal-fired fuel stations are being phased-out, still with the projected doubling of power generation over the
next 10 years, and with the continuing high demand for motor vehicles, the energy and transport sectors are likely to
remain the major sources of harmful emissions. Petitioners refer us to the study of the Philippine Environment
Monitor 20027, stating that in four of the country's major cities, Metro Manila, Davao, Cebu and Baguio, the exposure
to PM10, a finer PM which can penetrate deep into the lungs causing serious health problems, is estimated at over
US$430 million.8 The study also reports that the emissions of PMs have caused the following:

Over 2,000 people die prematurely. This loss is valued at about US$140 million.

Over 9,000 people suffer from chronic bronchitis, which is valued at about US$120 million.
 Nearly 51 million cases of respiratory symptom days in Metro Manila (averaging twice a year in Davao and
Cebu, and five to six times in Metro Manila and Baguio), costs about US$170 million. This is a 70 percent
increase, over a decade, when compared with the findings of a similar study done in 1992 for Metro Manila,
which reported 33 million cases.9

Petitioners likewise cite the University of the Philippines' studies in 1990-91 and 1994 showing that vehicular
emissions in Metro Manila have resulted to the prevalence of chronic obstructive pulmonary diseases (COPD); that
pulmonary tuberculosis is highest among jeepney drivers; and there is a 4.8 to 27.5 percent prevalence of
respiratory symptoms among school children and 15.8 to 40.6 percent among child vendors. The studies also
revealed that the children in Metro Manila showed more compromised pulmonary function than their rural
counterparts. Petitioners infer that these are mostly due to the emissions of PUVs.

To counter the aforementioned detrimental effects of emissions from PUVs, petitioners propose the use of CNG.
According to petitioners, CNG is a natural gas comprised mostly of methane which although containing small
amounts of propane and butane,10 is colorless and odorless and considered the cleanest fossil fuel because it
produces much less pollutants than coal and petroleum; produces up to 90 percent less CO compared to gasoline
and diesel fuel; reduces NOx emissions by 50 percent and cuts hydrocarbon emissions by half; emits 60 percent
less PMs; and releases virtually no sulfur dioxide. Although, according to petitioners, the only drawback of CNG is
that it produces more methane, one of the gases blamed for global warming.11

Asserting their right to clean air, petitioners contend that the bases for their petition for a writ of mandamus to order
the LTFRB to require PUVs to use CNG as an alternative fuel, lie in Section 16,12 Article II of the 1987 Constitution,
our ruling in Oposa v. Factoran, Jr.,13 and Section 414 of Republic Act No. 8749 otherwise known as the "Philippine
Clean Air Act of 1999."

Meantime, following a subsequent motion, the Court granted petitioners' motion to implead the Department of
Transportation and Communications (DOTC) as additional respondent.

In his Comment for respondents LTFRB and DOTC, the Solicitor General, cites Section 3, Rule 65 of the Revised
Rules of Court and explains that the writ of mandamus is not the correct remedy since the writ may be issued only to
command a tribunal, corporation, board or person to do an act that is required to be done, when he or it unlawfully
neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust or
station, or unlawfully excludes another from the use and enjoyment of a right or office to which such other is entitled,
there being no other plain, speedy and adequate remedy in the ordinary course of law.15 Further citing existing
jurisprudence, the Solicitor General explains that in contrast to a discretionary act, a ministerial act, which a
mandamus is, is one in which an officer or tribunal performs in a given state of facts, in a prescribed manner, in
obedience to a mandate of legal authority, without regard to or the exercise of his own judgment upon the propriety
or impropriety of an act done.

The Solicitor General also notes that nothing in Rep. Act No. 8749 that petitioners invoke, prohibits the use of
gasoline and diesel by owners of motor vehicles. Sadly too, according to the Solicitor General, Rep. Act No. 8749
does not even mention the existence of CNG as alternative fuel and avers that unless this law is amended to
provide CNG as alternative fuel for PUVs, the respondents cannot propose that PUVs use CNG as alternative fuel.

The Solicitor General also adds that it is the DENR that is tasked to implement Rep. Act No. 8749 and not the
LTFRB nor the DOTC. Moreover, he says, it is the Department of Energy (DOE), under Section 2616 of Rep. Act No.
8749, that is required to set the specifications for all types of fuel and fuel-related products to improve fuel
compositions for improved efficiency and reduced emissions. He adds that under Section 2117 of the cited Republic
Act, the DOTC is limited to implementing the emission standards for motor vehicles, and the herein respondents
cannot alter, change or modify the emission standards. The Solicitor General opines that the Court should declare
the instant petition for mandamus without merit.

Petitioners, in their Reply, insist that the respondents possess the administrative and regulatory powers to
implement measures in accordance with the policies and principles mandated by Rep. Act No. 8749, specifically
Section 218 and Section 21.19 Petitioners state that under these laws and with all the available information provided
by the DOE on the benefits of CNG, respondents cannot ignore the existence of CNG, and their failure to recognize
CNG and compel its use by PUVs as alternative fuel while air pollution brought about by the emissions of gasoline
and diesel endanger the environment and the people, is tantamount to neglect in the performance of a duty which
the law enjoins.

Lastly, petitioners aver that other than the writ applied for, they have no other plain, speedy and adequate remedy in
the ordinary course of law. Petitioners insist that the writ in fact should be issued pursuant to the very same Section
3, Rule 65 of the Revised Rules of Court that the Solicitor General invokes.

In their Memorandum, petitioners phrase the issues before us as follows:

I. WHETHER OR NOT THE PETITIONERS HAVE THE PERSONALITY TO BRING THE PRESENT
ACTION

II. WHETHER OR NOT THE PRESENT ACTION IS SUPPORTED BY LAW

III. WHETHER OR NOT THE RESPONDENT IS THE AGENCY RESPONSIBLE TO IMPLEMENT THE
SUGGESTED ALTERNATIVE OF REQUIRING PUBLIC UTILITY VEHICLES TO USE COMPRESSED
NATURAL GAS (CNG)

IV. WHETHER OR NOT THE RESPONDENT CAN BE COMPELLED TO REQUIRE PUBLIC UTILITY
VEHICLES TO USE COMPRESSED NATURAL GAS THROUGH A WRIT OF MANDAMUS 20

Briefly put, the issues are two-fold. First, Do petitioners have legal personality to bring this petition before us?
Second, Should mandamus issue against respondents to compel PUVs to use CNG as alternative fuel?

According to petitioners, Section 16,21 Article II of the 1987 Constitution is the policy statement that bestows on the
people the right to breathe clean air in a healthy environment. This policy is enunciated in Oposa.22 The
implementation of this policy is articulated in Rep. Act No. 8749. These, according to petitioners, are the bases for
their standing to file the instant petition. They aver that when there is an omission by the government to safeguard a
right, in this case their right to clean air, then, the citizens can resort to and exhaust all remedies to challenge this
omission by the government. This, they say, is embodied in Section 423 of Rep. Act No. 8749.

Petitioners insist that since it is the LTFRB and the DOTC that are the government agencies clothed with power to
regulate and control motor vehicles, particularly PUVs, and with the same agencies' awareness and knowledge that
the PUVs emit dangerous levels of air pollutants, then, the responsibility to see that these are curbed falls under
respondents' functions and a writ of mandamus should issue against them.

The Solicitor General, for his part, reiterates his position that the respondent government agencies, the DOTC and
the LTFRB, are not in a position to compel the PUVs to use CNG as alternative fuel. The Solicitor General explains
that the function of the DOTC is limited to implementing the emission standards set forth in Rep. Act No. 8749 and
the said law only goes as far as setting the maximum limit for the emission of vehicles, but it does not recognize
CNG as alternative engine fuel. The Solicitor General avers that the petition should be addressed to Congress for it
to come up with a policy that would compel the use of CNG as alternative fuel.

Patently, this Court is being asked to resolve issues that are not only procedural. Petitioners challenge this Court to
decide if what petitioners propose could be done through a less circuitous, speedy and unchartered course in an
issue that Chief Justice Hilario G. Davide, Jr. in his ponencia in the Oposa case,24 describes as "inter-generational
responsibility" and "inter-generational justice."

Now, as to petitioners' standing. There is no dispute that petitioners have standing to bring their case before this
Court. Even respondents do not question their standing. This petition focuses on one fundamental legal right of
petitioners, their right to clean air. Moreover, as held previously, a party's standing before this Court is a procedural
technicality which may, in the exercise of the Court's discretion, be set aside in view of the importance of the issue
raised. We brush aside this issue of technicality under the principle of the transcendental importance to the public,
especially so if these cases demand that they be settled promptly.

Undeniably, the right to clean air not only is an issue of paramount importance to petitioners for it concerns the air
they breathe, but it is also impressed with public interest. The consequences of the counter-productive and
retrogressive effects of a neglected environment due to emissions of motor vehicles immeasurably affect the well-
being of petitioners. On these considerations, the legal standing of the petitioners deserves recognition.

Our next concern is whether the writ of mandamus is the proper remedy, and if the writ could issue against
respondents.

Under Section 3, Rule 65 of the Rules of Court, mandamus lies under any of the following cases: (1) against any
tribunal which unlawfully neglects the performance of an act which the law specifically enjoins as a duty; (2) in case
any corporation, board or person unlawfully neglects the performance of an act which the law enjoins as a duty
resulting from an office, trust, or station; and (3) in case any tribunal, corporation, board or person unlawfully
excludes another from the use and enjoyment of a right or office to which such other is legally entitled; and there is
no other plain, speedy, and adequate remedy in the ordinary course of law.

In University of San Agustin, Inc. v. Court of Appeals,25 we said,

It is settled that mandamus is employed to compel the performance, when refused, of a ministerial
duty, this being its main objective. It does not lie to require anyone to fulfill contractual obligations or
to compel a course of conduct, nor to control or review the exercise of discretion. On the part of the
petitioner, it is essential to the issuance of a writ of mandamus that he should have a clear legal
right to the thing demanded and it must be the imperative duty of the respondent to perform the act
required. It never issues in doubtful cases. While it may not be necessary that the duty be absolutely
expressed, it must however, be clear. The writ will not issue to compel an official to do anything
which is not his duty to do or which is his duty not to do, or give to the applicant anything to which he
is not entitled by law. The writ neither confers powers nor imposes duties. It is simply a command to
exercise a power already possessed and to perform a duty already imposed. (Emphasis supplied.)

In this petition the legal right which is sought to be recognized and enforced hinges on a constitutional and a
statutory policy already articulated in operational terms, e.g. in Rep. Act No. 8749, the Philippine Clean Air Act of
1999. Paragraph (a), Section 21 of the Act specifically provides that when PUVs are concerned, the responsibility of
implementing the policy falls on respondent DOTC. It provides as follows:

SEC 21. Pollution from Motor Vehicles. - a) The DOTC shall implement the emission standards for motor
vehicles set pursuant to and as provided in this Act. To further improve the emission standards, the
Department [DENR] shall review, revise and publish the standards every two (2) years, or as the need
arises. It shall consider the maximum limits for all major pollutants to ensure substantial improvement in air
quality for the health, safety and welfare of the general public.

Paragraph (b) states:

b) The Department [DENR] in collaboration with the DOTC, DTI and LGUs, shall develop an action plan
for the control and management of air pollution from motor vehicles consistent with the Integrated Air
Quality Framework . . . . (Emphasis supplied.)

There is no dispute that under the Clean Air Act it is the DENR that is tasked to set the emission standards for fuel
use and the task of developing an action plan. As far as motor vehicles are concerned, it devolves upon the DOTC
and the line agency whose mandate is to oversee that motor vehicles prepare an action plan and implement the
emission standards for motor vehicles, namely the LTFRB.

In Oposa26 we said, the right to a balanced and healthful ecology carries with it the correlative duty to refrain from
impairing the environment. We also said, it is clearly the duty of the responsible government agencies to advance
the said right.

Petitioners invoke the provisions of the Constitution and the Clean Air Act in their prayer for issuance of a writ of
mandamus commanding the respondents to require PUVs to use CNG as an alternative fuel. Although both are
general mandates that do not specifically enjoin the use of any kind of fuel, particularly the use of CNG, there is an
executive order implementing a program on the use of CNG by public vehicles. Executive Order No. 290,
entitled Implementing the Natural Gas Vehicle Program for Public Transport (NGVPPT), took effect on February 24,
2004. The program recognized, among others, natural gas as a clean burning alternative fuel for vehicle which has
the potential to produce substantially lower pollutants; and the Malampaya Gas-to-Power Project as representing
the beginning of the natural gas industry of the Philippines. Paragraph 1.2, Section 1 of E.O. No. 290 cites as one of
its objectives, the use of CNG as a clean alternative fuel for transport. Furthermore, one of the components of the
program is the development of CNG refueling stations and all related facilities in strategic locations in the country to
serve the needs of CNG-powered PUVs. Section 3 of E.O. No. 290, consistent with E.O. No. 66, series of 2002,
designated the DOE as the lead agency (a) in developing the natural gas industry of the country with the DENR,
through the EMB and (b) in formulating emission standards for CNG. Most significantly, par. 4.5, Section 4 tasks the
DOTC, working with the DOE, to develop an implementation plan for "a gradual shift to CNG fuel utilization in PUVs
and promote NGVs [natural gas vehicles] in Metro Manila and Luzon through the issuance of directives/orders
providing preferential franchises in present day major routes and exclusive franchises to NGVs in newly opened
routes" A thorough reading of the executive order assures us that implementation for a cleaner environment is
being addressed. To a certain extent, the instant petition had been mooted by the issuance of E.O. No. 290.

Regrettably, however, the plain, speedy and adequate remedy herein sought by petitioners, i.e., a writ of mandamus
commanding the respondents to require PUVs to use CNG, is unavailing. Mandamus is available only to compel the
doing of an act specifically enjoined by law as a duty. Here, there is no law that mandates the respondents LTFRB
and the DOTC to order owners of motor vehicles to use CNG. At most the LTFRB has been tasked by E.O. No. 290
in par. 4.5 (ii), Section 4 "to grant preferential and exclusive Certificates of Public Convenience (CPC) or franchises
to operators of NGVs based on the results of the DOTC surveys."

Further, mandamus will not generally lie from one branch of government to a coordinate branch, for the obvious
reason that neither is inferior to the other.27 The need for future changes in both legislation and its implementation
cannot be preempted by orders from this Court, especially when what is prayed for is procedurally infirm. Besides,
comity with and courtesy to a coequal branch dictate that we give sufficient time and leeway for the coequal
branches to address by themselves the environmental problems raised in this petition.

In the same manner that we have associated the fundamental right to a balanced and healthful ecology with the twin
concepts of "inter-generational responsibility" and "inter-generational justice" in Oposa,28 where we upheld the right
of future Filipinos to prevent the destruction of the rainforests, so do we recognize, in this petition, the right of
petitioners and the future generation to clean air. In Oposa we said that if the right to a balanced and healthful
ecology is now explicitly found in the Constitution even if the right is "assumed to exist from the inception of
humankind, it is because of the well-founded fear of its framers [of the Constitution] that unless the rights to a
balanced and healthful ecology and to health are mandated as state policies by the Constitution itself, thereby
highlighting their continuing importance and imposing upon the state a solemn obligation to preserve the first and
protect and advance the second, the day would not be too far when all else would be lost not only for the present
generation, but also for those to come. . ."29

It is the firm belief of this Court that in this case, it is timely to reaffirm the premium we have placed on the protection
of the environment in the landmark case of Oposa. Yet, as serious as the statistics are on air pollution, with the
present fuels deemed toxic as they are to the environment, as fatal as these pollutants are to the health of the
citizens, and urgently requiring resort to drastic measures to reduce air pollutants emitted by motor vehicles, we
must admit in particular that petitioners are unable to pinpoint the law that imposes an indubitable legal duty on
respondents that will justify a grant of the writ of mandamus compelling the use of CNG for public utility vehicles. It
appears to us that more properly, the legislature should provide first the specific statutory remedy to the complex
environmental problems bared by herein petitioners before any judicial recourse by mandamus is taken.

WHEREFORE, the petition for the issuance of a writ of mandamus is DISMISSED for lack of merit.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 194239 June 16, 2015

WEST TOWER CONDOMINIUM CORPORATION, on behalf of the Residents of West Tower Condominium
and in representation of Barangay Bangkal, and others, including minors and generations yet
unborn,Petitioners,
vs.
FIRST PHILIPPINE INDUSTRIAL CORPORATION, FIRST GEN CORPORATION and their RESPECTIVE
BOARD OF DIRECTORS AND OFFICERS, JOHN DOES, and RICHARD DOES, Respondents.

DECISION

VELASCO, JR., J.:

Nature of the Case

Before the Court is the Petition for the Issuance of a Writ of Kalikasan filed following the leak in the oil pipeline
owned by First Philippine Industrial Corporation (FPIC) in Makati City. The Facts

Respondent FPI C operates two pipelines since 1969, viz: ( 1) the White Oil Pipeline (WOPL) System, which covers
a 117-kilometer stretch from Batangas to the Pandacan Terminal in Manila and transports diesel, gasoline, jet fuel
and kerosene; and (b) the Black Oil Pipeline (BOPL) System which extends 105 kilometers and transports bunker
fuel from Batangas to a depot in Sucat, Paraaque. These systems transport nearly 60% of the petroleum
requirements of Metro Manila and parts of the provinces of Bulacan, Laguna, and Rizal.

The two pipelines were supposedly designed to provide more than double the standard safety allowance against
leakage, considering that they are made out of heavy duty steel that can withstand more than twice the current
operating pressure and are buried at a minimum depth of 1.5 meters, which is deeper than the US Department of
Transportation standard of 0.9 meters. In May 2010, however, a leakage from one of the pipelines was suspected
after the residents of West Tower Condominium (West Tower) started to smell gas within the condominium. A
search made on July 10, 2010 within the condominium premises led to the discovery of a fuel leak from the wall of
its Basement 2. Owing to its inability to control the flow, West Tower's management reported the matter to the Police
Department of Makati City, which in turn called the city's Bureau of Fire Protection.

What started as a two-drum leak at the initial stages became a 15-20 drum a day affair. Eventually, the sump pit of
the condominium was ordered shut down by the City of Makati to prevent the discharge of contaminated water into
the drainage system of Barangay Bangkal. Eventually, the fumes compelled the residents of West Tower to
abandon their respective units on July 23, 2010 and the condo's power was shut down.

Petitioner FPIC initially disowned any leak from its oil pipeline. Thus, the residents of West Tower shouldered the
expenses of hauling the waste water from its basement, which eventually required the setting up of a treatment plant
in the area to separate fuel from the waste water. On October 28, 2010, the University of the Philippines-National
Institute of Geological Sciences (UP-NIGS), which the City of Makati invited to determine the source of the fuel,
found a leak in FPIC's WOPL about 86 meters from West Tower.

A day after, or on October 29, 2010, FPIC admitted that indeed the source of the fuel leak is the WOPL, which was
already closed since October 24, 2010, but denied liability by placing blame on the construction activities on the
roads surrounding West Tower.

On November 15, 2010, West Tower Condominium Corporation (West Tower Corp.) interposed the present Petition
for the Issuance of a Writ of Kalikasan on behalf of the residents of West Tower and in representation of the
surrounding communities in Barangay Bangkal, Makati City. West Tower Corp. also alleged that it is joined by the
civil society and several people's organizations, non-governmental organizations and public interest groups who
have expressed their intent to join the suit because of the magnitude of the environmental issues involved.1

In their petition, petitioners prayed that respondents FPIC and its board of directors and officers, and First Gen
Corporation (FGC) and its board of directors and officers be directed to: (1) permanently cease and desist from
committing acts of negligence in the performance of their functions as a common carrier; (2) continue to check the
structural integrity of the whole 117-kilometer pipeline and to replace the same; (3) make periodic reports on their
findings with regard to the 117-kilometer pipeline and their replacement of the same; (4) rehabilitate and restore the
environment, especially Barangay Bangkal and West Tower, at least to what it was before the signs of the leak
became manifest; and (5) to open a special trust fund to answer for similar and future contingencies in the future.
Furthermore, petitioners pray that respondents be prohibited from opening the pipeline and allowing the use thereof
until the same has been thoroughly checked and replaced, and be temporarily restrained from operating the pipeline
until the final resolution of the case.

To bolster their petition, petitioners argued that FPIC's omission or failure to timely replace. its pipelines and to
observe extraordinary diligence caused the petroleum spill in the City of Makati. Thus, for petitioners, the continued
use of the now 4 7-year old pipeline would not only be a hazard or a threat to the lives, health, and property of those
who live or sojourn in all the municipalities in which the pipeline is laid, but would also affect the rights of the
generations yet unborn to live in a balanced and "healthful ecology," guaranteed under Section 16, Article II of the
1987 Constitution.

On November 19, 2010, the Court issued the Writ of Kalikasan2 with a Temporary Environmental Protection Order
(TEPO) requiring respondents FPIC, FGC, and the members of their Boards of Directors to file their respective
verified returns. The TEPO enjoined FPIC and FGC to: (a) cease and desist from operating the WOPL until further
orders; (b) check the structural integrity of the whole span of the 11 7-kilometer WOPL while implementing sufficient
measures to prevent and avert any untoward incident that may result from any leak of the pipeline; and ( c) make a
report thereon within 60 days from receipt thereof.

In compliance with the writ, FPIC directors Edgar Chua, Dennis Javier, Dennis Gamab and Willie Sarmiento
submitted a Joint Return3 praying for the dismissal of the petition and the denial of the privilege of the Writ of
Kalikasan. They alleged that: petitioners had no legal capacity to institute the petition; there is no allegation that the
environmental damage affected the inhabitants of two (2) or more cities or provinces; and the continued operation of
the pipeline should be allowed in the interest of maintaining adequate petroleum supply to the public.

Respondents FPIC and its directors and officers, other than the aforementioned four ( 4) directors, also filed a
Verified Return4 claiming that not all requirements for the issuance of the Writ of Kalikasan are present and there is
no showing that West Tower Corp. was authorized by all those it claimed to represent. They further averred that the
petition contains no allegation that respondents FPIC directors and officers acted in such a manner as to allow the
piercing of the corporate veil.

Meanwhile, on January 18, 201-1, FGC and the members of its Board of Directors and Officers filed a Joint
Compliance5 submitting the report required by the Writ of Kalikasan/TEPO. They contended that they neither own
nor operate the pipelines, adding that it is impossible for them to report on the structural integrity of the pipelines,
much less to cease and desist from operating them as they have no capability, power, control or responsibility over
the pipelines. They, thus, prayed that the directives of the Writ of Kalikasan/TEPO be considered as sufficiently
performed, as to them.

On January 21, 2011, FPIC, in compliance with the writ, submitted its 4-page "Report on Pipeline Integrity Check
and Preventive Maintenance Program."6 In gist, FPIC reported the following: (I) For the structural integrity of the
117-kilometer pipeline, (a) the DOE engaged the services of UP-NIGS to do borehole testing on 81 pre-identified
critical areas of the WQPL in eight cities and municipalities-all the boreholes showed negative presence of
petroleum vapors; (b) pressure tests were conducted after the repair of the leak and results showed negative leaks
and the DOE's pipeline expert, Societe General de Surveillance, New Zealand, has developed a pressure test
protocol requiring a 24-hour operation of running a scraper pig through the pipeline to eliminate air gap; (c) In-Line
Inspection Test, was conducted by NDT through MFL and ultrasonic. The NDT later cleared the WOPL from any
damage or corrosion.
(II) For preventive maintenance measures, (a) Cathodic Protection Systems are installed involving the use of anode
materials and the introduction of electric current in the pipeline to enhance prevention of corrosion; (b) Regular
Scraper Runs through the pipeline to maintain cleanliness and integrity of the pipelines' internal surface; (c) Daily
Patrols every two hours of the pipeline route to deter unauthorized diggings in the vicinity of the pipeline segments; (
d) Regular coordination meetings with DPWH, MMDA and utility companies to monitor projects that might involve
digging or excavation in the vicinity of the pipeline segments; (e) Installation of Security Warning Signs along the
pipeline route with toll free number which can be called in the event of an accident or emergency; (f) Emergency
Response Procedure of the ERT is activated by a call-out procedure; (g) Maintenance of Emergency Equipment and
Repair Kit which are always on standby; and, (h) Remotely controlled Isolation Valves are in place to shut the
pipeline when necessary.

On February 9, 2011, petitioners filed, and the Court eventually granted, their Motion to Set the Case for Preliminary
Conference and Hearing7 pursuant to Sec. 11, Rule 7 of the Rules of Procedure for Environmental Cases.

On April 15, 2011, the Court conducted an ocular inspection of the WOPL in the vicinity of West Tower to determine
the veracity of the claim that there were two (2) additional leaks on FPIC's pipeline. Results of the ocular inspection
belied the claim.

In the meantime, petitioners also filed civil and criminal complaints against respondents arising from the same
incident or leakage from the WOPL.8

Since after the Court's issuance of the Writ of Kalikasan and the TEPO on November 19, 2010, FPIC has ceased
operations on both the WOPL and the BOPL. On May 31, 2011, however, the Court, answering a query of the DOE,
clarified and confirmed that what is covered by the Writ of Kalikasan and TEPO is only the WOPL System of FPIC;
thus, FPIC can resume operation of its BOPL System.9

On July 7, 2011, petitioners filed an Omnibus Motion10 assailing the Court's May 31, 2011 Resolution, praying for the
conduct of oral argument on the issue of reopening the BOPL System. This was followed, on September 9, 2011, by
a Manifestation (Re: Current Developments) with Omnibus Motion11 wherein petitioners invoked the precautionary
principle12 and asserted that the possibility of a leak in the BOPL System leading to catastrophic environmental
damage is enough reason to order the closure of its operation. They likewise alleged that the entities contracted by
FPIC to clean and remediate the environment are illegally discharging waste water, which had not undergone proper
treatment, into the Paraaque River. Petitioners, thus, prayed that respondents be directed to comply with
environmental laws in rehabilitating the surroundings affected by the oil leak and to submit a copy of their work plan
and monthly reports on the progress thereof. To these omnibus motions, respondents were directed to file their
respective comments.

On September 28, 2011, respondent FPIC filed an Urgent Motion for Leave (To Undertake "Bangkal Realignment"
Project)13 in order to reduce stress on the WOPL System. FPIC sought to construct a new realigned segment to
replace the old pipe segment under the Magallanes Interchange, which covers the portion that leaked. Petitioners
were directed to file their comment on FPIC's motion.

Report and Recommendation of the Court of Appeals

To expedite the resolution of the controversy, the Court remanded the case to the Court of Appeals (CA). By this
Court's Resolution dated November 22, 2011,14 the appellate court was required to conduct hearings and, thereafter,
submit a report and recommendation within 30 days after the receipt of the parties' memoranda.

On March 21, 2012, the preliminary conference was continued before the CA wherein the parties made admissions
and stipulations of facts and defined the issues for resolution. In view of the technical nature of the case, the CA
also appointed15 several amici curiae,16 but only four (4) filed their reports.17

On December 26, 2012, the CA Former 11th Division submitted to the Court its well-crafted and exhaustive 156-
page Report and Recommendation18 dated December 21, 2012 (CA Report). Some highlights of the Report:
1. Anent petitioners' June 28, 2011 Omnibus Motion assailing the reopening of the BOPL System, the CA
directed respondent FPIC to submit the appropriate certification from the DOE as to the safe commercial
operation of the BOPL; otherwise, the operation of the BOPL must also be enjoined.

2. On petitioners' September 9, 2011 Manifestation (Re: Current Developments) with Omnibus Motion, the
CA directed the Inter-Agency Committee on Health to submit its evaluation of the remediation plan prepared
by CH2M Hill Philippines, Inc. for FPIC. Further, the appellate court directed FPIC to strictly comply with the
stipulations contained in the permits issued by the Department of Environment and Natural Resources
(DENR) for its remediation activities in Barangay Bangkal, Makati City. The DENR was in turn directed by
the CA to:

(a) monitor compliance by respondent FPIC with applicable environmental laws and regulations and
conditions set forth in the permits issued;

(b) conduct independent analysis of end-products of the Multi-Phase Extraction System;

(c) conduct regular consultative meetings with the City of Makati, residents of Barangay Bangkal and
other stakeholders concerning the remediation activities; and,

(d) evaluate the viability of the recommendation of amicus Dr. Benjamin R. De Jesus, Jr. to include
the use of surfactants and oxygen-releasing compounds (ORCs) in the middle and terminal portions
of the remediation plan.

3. Respondent's September 27, 2011 Urgent Motion for Leave (To Undertake "Bangkal Realignment"
Project) was denied.

4. With regard to the March 29, 2012 Supplemental Manifestation (Re: List of Amici Curiae and Recent
Possible Leak in the Pipeline) filed by petitioners, the CA found that the existence of another possible leak
alleged by petitioners was not established. Nonetheless, to prevent such event, the CA ordered FPIC to: (i)
review, adopt and strictly observe appropriate safety and precautionary measures; (ii) closely monitor the
conduct of its maintenance and repair works; and (iii) submit to the DOE regular monthly reports on the
structural integrity and safe commercial operation of the pipeline.

5. As to the merits of the case, the CA submitted the following recommendations:

(a) That the people's organizations, non-governmental organizations, and public interest groups that
indicated their intention to join the petition and submitted proof of juridical personality (namely: the
Catholic Bishop's Conference of the Philippines; Kilusang Makabansang Ekonomiya, Inc.; Women's
Business Council of the Philippines, Inc.; Junior Chambers International Philippines, Inc. - San Juan
Chapter; Zonta Club of Makati Ayala Foundations; and the Consolidated Mansions Condominium
Corporation) be allowed to be formally impleaded as petitioners.

(b) That respondent FPIC be ordered to submit a certification from the DOE Secretary that the
WOPL is already safe for commercial operation. The certification should take into consideration the
adoption by FPIC of the appropriate leak detection system to be used in monitoring the entire
pipeline's mass input versus mass output. The certification must also consider the necessity of
replacing the pipes with existing patches and sleeves. In case of failure of respondent FPIC to
submit the required certification from the DOE Secretary within sixty (60) days from notice of the
Honorable Supreme Court's approval of this recommendation, the TEPO must be made permanent.

(c) That petitioners' prayer for the creation of a special trust fund to answer for similar contingencies
in the future be denied for lack of sufficient basis.

d) That respondent FGC be not held solidarily liable under the TEPO.

(e) That without prejudice to the outcome of the civil and criminal cases filed against respondents,
the individual directors and officers of FPIC and FGC be not held liable in their individual capacities.
On January 11, 2013, petitioners filed their Motion for Partial Reconsideration19 of the CA's Report praying that (a)
instead of the DOE, the required certification should be issued by the DOST-Metal Industry Research and
Development Center; (b) a trust fund be created to answer for future contingencies; and ( c) the directors and
officers of FPIC and FGC be held accountable.

On January 25, 2013, FPIC filed its Compliance (Re: Department of Energy Certification on the Black Oil
Pipeline)20and submitted the required DOE Certification21 issued on January 22, 2013 by DOE Secretary Carlos
Jericho L. Petilla (Secretary Petilla). On March 14, 2013, petitioners countered with a Manifestation with
Motion22 asserting that FPIC's certification is not compliant with the CA's requirement. Hence, petitioners moved that
the certification should be disregarded, the 30-day period be deemed to have lapsed, and FPIC be permanently
enjoined from operating the BOPL.

On July 30, 2013, the Court issued a Resolution adopting the recommendation of the CA in its Report and
Recommendation that FPIC be ordered to secure a certification from the DOE Secretary before the WOPL may
resume its operations. The pertinent portion of said Resolution reads:

[FPIC] is hereby ORDERED to submit a certification from the DOE Secretary that the pipeline is already safe for
commercial operation. The certification should take into consideration the adoption by FPIC of the appropriate leak
detection system to be used in monitoring the entire pipeline's mass input versus mass output. The certification
must also consider the necessity of replacing the pipes with existing patches and sleeves x x x.23

The DOE Secretary is DIRECTED to consult the [DOST] regarding the adoption of the appropriate leak detection
system and the necessity of replacing the pipes with existing patches and sleeves.

On October 2, 2013, petitioners, in a Motion for Reconsideration with Motion for Clarification, emphasized that the
CA found FPIC's tests and maintenance program to be insufficient and inconclusive to establish the WOPL' s
structural integrity for continued commercial operation.24 Furthermore, petitioners point out that the DOE is biased
and incapable of determining the WOPL's structural integrity.

Respondents, for their part, maintain that the DOE has the technical competence and expertise to assess the
structural integrity of the WOPL and to certify the system's safety for commercial operation.25 Respondents further
allege that the DOE is the agency empowered to regulate the transportation and distribution of petroleum products,
and to regulate and monitor downstream oil industry activities, including "product distribution" through pipelines.26

In compliance with the Court's July 30, 2013 Resolution, the DOE Secretary issued on October 25, 2013 a
Certification,27 attesting that the WOPL is safe to resume commercial operations, subject to monitoring or inspection
requirements, and imposing several conditions that FPIC must comply with. The Certification, in its entirety, reads:

This is to certify that based on the Pipeline Integrity Management Systems (PIMS) being implemented by [FPIC] for
its [WOPL] facility, the same is safe to resume commercial operations. This certification is being issued after
consultation with the [DOST] and on the basis of the following considerations, to wit:

1. DOE noted the adoption by FPIC of the appropriate leak detection system to be used in monitoring the
pipeline's mass input versus mass output, as well as the other measures of leak detection and prevention
adopted by the latter;

2. DOE further noted that FPIC has already undertaken realignment and reinforcement works on the current
pipeline to remove majority of the patches. FPIC has likewise presented substantial and adequate
documentation showing that the remaining patches and sleeves are safe, and that the use of such is
recognized by the industry and complies with existing standards;

3. DOE finally noted the results of various tests and inspections done on the pipeline as indicated in the
Manifestation submitted by ,the DOE on March 31, 2012, in the civil case docketed as CA GR SP No. 00008
and entitled West Tower Condominium, et al. [v.] First Philippine Industrial Corporation, et al.

This certification is being issued subject to the condition that FPIC will submit itself to regular monitoring and
validation by the Oil Industry Management Bureau (OIMB) of the implementation of its PIMS, particularly on the
following: (a) mass or volume input versus mass or volume output loss/gain accounting; (b) results of borehole
monitoring, (c) inspection of the pipeline cathodic protection and (d) pressure test.

Further, FPIC shall submit itself to any test or inspection that the DOE and DOST may deem appropriate for
purposes of monitoring the operations of the WOPL facility.

The Court is fully cognizant of the WOPL' s value in commerce and the adverse effects of a prolonged closure
thereof. Nevertheless, there is a need to balance the necessity of the immediate reopening of the WOPL with the
more important need to ensure that it is sound for continued operation, since the substances it carries pose a
significant hazard to the surrounding population and to the environment.28 A cursory review of the most recent oil
pipeline tragedies around the world will readily show that extreme caution should be exercised in the monitoring and
operation of these common carriers:

(1) On August 1, 2014, a series of powerful explosions from underground pipeline systems ripped up the
streets of Kaohsiung, Taiwan, killing at least 28 people and injuring 299 more. Further, 23 ,600, 2,268 and
6,000 households were left without gas, power and water, respectively, in the 2-3 square kilometer blast
area.29

(2) On November 22, 2013, an oil pipeline leaked, caught fire, and exploded in Qingdao, Shangdao Province
in China, killing 55 people and injuring more than a hundred more.30

(3) On September 14, 2011, a fuel pipeline exploded in Kenya's capital city, Nairobi, reducing bodies to dust
and flattening homes. At least 7 5 people died in the explosion, while more than a hundred people were
injured.31

(4) In September 2010, a natural gas pipeline ruptured and set off a fireball, killing eight (8) people and
leveling 3 8 homes in San Bruno, California in the United States.32

(5) On July 30, 2004, a rupture of an underground natural gas pipeline buried six (6) meters in Ghislenghien,
Belgium resulted in 24 deaths and over 120 injuries.33

On April 29 and 30, 2014, the DOE organized a dialogue between said government agencies and the FPIC. There it
was stated that during the dialogue, "the division heads and a high profile team from FPIC, both from operation and
management made presentations and answered questions on pipeline pumping operation and product delivery, and
a detailed explanation of the FPIC PIMS' control measures, condition monitoring measures, and emergency
measures, as well as its various activities and projects implemented since 2010 such as pipeline replacement and
realignment in Pandacan and Bangkal, inspection and reinforcement of all patches in the WOPL, inspection and
reinforcement of a number of reported dents in the WOPL, conduct of successful leak tests, and installation of
boreholes that are gas-tested on a weekly basis, and the safety systems that go with the daily pipeline operation
and maintenance and project execution."34

On August 5, 2014, Secretary Carlos Jericho L. Petilla of the DOE submitted a letter35 recommending activities and
timetable for the resumption of the WOPL operations, to wit:

A. Preparatory to the Test Run

I. FPIC Tasks:

a. Continue submission of monitoring charts, data/reading, accomplishment reports, and project status for all
related activities/works. Respond to comments and prepare for site inspection.

b. Continue gas testing along the right-of-way using the monitoring wells or boreholes. Prepare for
inspection of right-of-way and observation of gas testing activities on monitoring wells and boreholes.

c. Expound on the selection of borehole location. For example, identify those located in pipeline bends,
bodies of water, residential areas, repaired portions of the pipelines, dents and welded joints.
 d. Continue submitting status report relating to "Project Mojica" (an ongoing pipeline segment realignment
activity undertaken by FPIC to give way to a flood control project of MMDA in the vicinity of Mojica St. and
Pres. Osmea Highway in Makati City). Prepare for site inspection.

II. Inter-agency undertaking:

a. Conduct onsite inspection of right-of-way

b. Review/check remaining 22 patches that were already inspected and reinforced with Clockspring sleeves.

i. Determine location of sleeves.

ii. Review of procedures on repair of sleeves.

iii. Random visual inspection of areas easily accessible.

c. Cathodic protection's onsite inspection on rectifier to check readings

i. Old readings

ii. Current Readings

iii. Segment covered

iv. Criteria for prioritization for corrective action

d. Observe and witness the running/operation of the cleaning pig.

e. Check and validate all calibration certificate of instruments

i. Instrument verification and calibration.

B. Actual Test Run (to be undertaken both by FPIC and inter-agency)

a. Perform Cleaning Pig Run

i. Witness launching and receiving of the cleaning pig.

ii. Handling of the residuals after cleaning.

b. Demonstrate Various Pressure Tests (already being conducted by FPIC)

i. Blocked-in pressure test (Leak Test, not in operation)

ii. In-operation (hourly reading)

c. Continue Current Gas Monitoring (boreholes)

i. Ocular inspection of selected areas

d. Demonstrate mass or volume balance computation during WOPL test run (already being implemented in
the BOPL)

i. 30 days baseline data generation

 ii. 30 days computational analysis and monitoring

C. Commissioning or Return to Commercial Operation

I. FPIC Tasks:

a. Continue implementation of the PIMS. Review recommendations from DOE.

b. Continue monthly reporting of operations and maintenance activities with DOE.

c. Continue reporting and coordination with DOE and other government agencies for implementation of
projects.36

Secretary Petilla also recounted to the Court in his August 5, 2014 letter that the DOE, together with the DPWH and
the Metropolitan Manila Development Authority (MMDA), observed the different milestones of the realignment
project being undertaken by FPIC in support of the MMDA Flood Control Project and stated that the new line
segment as laid was coated with corrosion protection prior to the backfilling of the excavated portion.

On February 3, 2015, the Court required the parties to submit their comment on Sec. Petilla's letter within ten (10)
days from receipt of the Resolution. On various dates, respondents First Gen Corporation, FPIC, and petitioner
West Tower filed their respective comments37 in compliance with the Court's resolution. The intervenors were unable
to comply with the Court's directive; hence, they are deemed to have waived their right to file their respective
comments. The Issues

Having received the October 25, 2013 Certification and the August 5, 2014 Letter from the DOE on the state of the
WOPL, as well as the parties' comments thereon, the following issues defined by the parties during the March 21,
2012 preliminary conference are now ripe for adjudication:

1. Whether petitioner West Tower Corp. has the legal capacity to represent the other petitioners and
whether the other petitioners, apart from the residents of West Tower and Barangay Bangkal, are real
parties-in-interest;

2. Whether a Permanent Environmental Protection Order should be issued to direct the respondents to
perform or to desist from performing acts in order to protect, preserve, and rehabilitate the affected
environment;

3. Whether a special trust fund should be opened by respondents to answer for future similar contingencies;
and

4. Whether FGC and the directors and officers of respondents FPIC and FGC may be held liable under the
environmental protection order.38

The Court's Ruling

We adopt, with modifications, the recommendations of the CA and discuss the foregoing issues in seriatim.

I.
Petitioners as Real Parties-in-Interest

On the procedural aspect, We agree with the CA that petitioners who are affected residents of West Tower and
Barangay Bangkal have the requisite concern to be real parties-in-interest to pursue the instant petition.

Residents of West Tower and Barangay Bangkal

As defined, a real party-in-interest is the party who stands to be benefited or injured by the judgment in the suit, or
the party entitled to the avails of the suit.39 Generally, every action must be prosecuted or defended in the name of
the real parties-in-interest.40 In other words, the action must be brought by the person who, by substantive law,
possesses the right sought to be enforced.41 Alternatively, one who has no right or interest to protect cannot invoke
the jurisdiction of the court as party-plaintiff-in-action for it is jurisprudentially ordained that every action must be
prosecuted or defended in the name of the real party-in-interest.42

In the case at bar, there can be no quibble that the oil leak from the WOPL affected all the condominium unit owners
and residents of West Tower as, in fact, all had to evacuate their units at the wee hours in the morning of July 23,
2010, when the condominium's electrical power was shut down. Until now, the unit owners and residents of West
Tower could still not return to their condominium units. Thus, there is no gainsaying that the residents of West Tower
are real parties-in-interest.

There can also be no denying that West Tower Corp. represents the common interest of its unit owners and
residents, and has the legal standing to file and pursue the instant petition. While a condominium corporation has
limited powers under RA 4 726, otherwise known as The Condominium Act,43 it is empowered to pursue actions in
behalf of its members. In the instant case, the condominium corporation .is the management body of West Tower
and deals with everything that may affect some or all of the condominium unit owners or users.

It is of no moment that only five residents of West Tower signed their acquiescence to the filing of the petition for the
issuance of the Writ of Kalikasan, as the merits of such petition is, as aptly put by the CA, not measured by the
number of persons who signified their assent thereto, but on the existence of a prima facie case of a massive
environmental disaster.

Moreover, the fact that no board resolution was submitted by West Tower Corp. authorizing Manuel Dy Chuaunsu,
Jr. to sign the Verification and Certification of Non-forum Shopping is irrelevant. The records show that petitioners
submitted a notarized Secretary's Certificate44 attesting that the authority of Chuaunsu to represent the condominium
corporation in filing the petition is from the resolution of the total membership of West Tower Corp. issued during
their November 9, 2010 meeting with the requisite quorum. It is, thus, clear that it was not the Board of West Tower
Corp. which granted Chuaunsu the authority but the full membership of the condominium corporation itself.

As to the residents of Barangay Bangkal, they are similarly situated with the unit owners and residents of West
Tower and are real parties-in-interest to the instant case, i.e., if they so wish to join the petitioners.

Organizations that indicated their intention to join the petition

and submitted proof of juridical personality

Anent the propriety of including the Catholic Bishops' Conference of the Philippines, Kilusang Makabansang
Ekonomiya, Inc., Women's Business Council of the Philippines, Inc., Junior Chambers International Philippines, Inc.
- San Juan Chapter, Zonta Club of Makati Ayala Foundations, and the Consolidated Mansions Condominium
Corporation, as petitioners in the case, the Court already granted their intervention in the present controversy in the
adverted July 30, 2013 Resolution.

This is so considering that the filing of a petition for the issuance of a writ of kalikasan under Sec. 1, Rule 745 of the
Rules of Procedure for Environmental Cases does not require that a petitioner be directly affected by an
environmental disaster. The rule clearly allows juridical persons to file the petition on behalf of persons whose
constitutional right to a balanced and healthful ecology is violated, or threatened with violation.

Thus, as parties to the case, they are entitled to be furnished copies of all the submissions to the Court, including
the periodic reports of FPIC and the results of the evaluations and tests conducted on the WOPL.

Having disposed of the procedural issue, We proceed to the bone of contention in the pending motions. Suffice it to
state in the outset that as regards the substantive issues presented, the Court, likewise, concurs with the other
recommendations of the CA, with a few modifications.

II.
Propriety of Converting the TEPO to PEPO or its Lifting in light of the
DOE Certification of the WOPL's Commercial Viability

To recall, petitioners' persistent plea is for the conversion of the November 19, 2010 TEPO into a Permanent
Environmental Protection Order (PEPO) pursuant to Sec. 3,46 Rule 5 of the Rules of Procedure for Environmental
Cases. For its part, respondent FPIC asserts that regular testing, as well as the measures that are already in place,
will sufficiently address any concern of oil leaks from the WOPL.

With respect to leak detection, FPIC claims that it has in place the following systems: (a) regular cleaning scraper
runs, which are done quarterly; (b) pipeline integrity gauge (PIG) tests/Intelligent PIG, now known as in-line
inspections (ILI), which is done every five years; (c) pressure monitoring valves; and ( d) 24-hour patrols.
Additionally, FPIC asserted that it also undertook the following: (a) monitoring of wells and borehole testing/vapor
tests; (b) leak tightness test, also known as segment pressure test; (c) pressure-controlled test; (d) inspection and
reinforcement of patches; (e) inspection and reinforcement of dents; and (f) Pandacan segment
replacement.47Furthermore, in August 2010, with the oil leak hogging the headlines, FPIC hired NDT Middle East
FZE (NDT) to conduct ILI inspections through magnetic flux leakage (MFL) and ultrasonic tests to, respectively,
detect wall thinning of the pipeline and check it for cracks.

The CA, however, observed that all of these tests and measures are inconclusive and insufficient for purposes of
leak detection and pipeline integrity maintenance. Hence, considering the necessary caution and level of assurance
required to ensure that the WOPL system is free from leaks and is safe for commercial operation, the CA
recommended that FPIC obtain from the DOE a certification that the WOPL is already safe for commercial
operation. This certification, according to the CA, was to be issued with due consideration of the adoption by FPIC of
the appropriate leak detection systems to monitor sufficiently the entire WOPL and the need to replace portions of
the pipes with existing patches and sleeves. Sans the required certification, use of the WOPL shall remain abated.

The Court found this recommendation of the appellate court proper. Hence, We required FPIC to obtain the
adverted DOE Certification in Our July 30, 2013 Resolution. We deemed it proper to require said certification from
the DOE considering that the core issue of this case requires the specialized knowledge and special expertise of the
DOE and various other administrative agencies. On October 25, 2013, the DOE submitted the certification pursuant
to the July 30, 2013 Resolution of the Court. Later, however, on August 5, 2014, DOE Secretary Carlos Jericho I.
Petilla submitted a letter recommending certain activities and the timetable for the resumption of the WOPL
operations after conducting a dialogue between the concerned government agencies and FPIC.

After a perusal of the recommendations of the DOE and the submissions of the parties, the Court adopts the
activities and measures prescribed in the DOE letter dated August 5, 2014 to be complied with by FPIC as
conditions for the resumption of the commercial operations of the WOPL. The DOE should, therefore, proceed with
the implementation of the tests proposed in the said August 5, 2014 letter. Thereafter, if it is satisfied that the results
warrant the immediate reopening of the WOPL, the DOE shall issue an order allowing FPIC to resume the operation
of the WOPL. On the other hand, should the probe result in a finding that the pipeline is no longer safe for continued
use and that its condition is irremediable, or that it already exceeded its serviceable life, among others, the closure
of the WOPL may be ordered.

The DOE is specially equipped to consider FPIC's proper implementation and compliance with its PIMS and to
evaluate the result of the various tests conducted on the pipeline. The DOE is empowered by Sec. 12(b)(l), RA 7638
to formulate and implement policies for the efficient and economical "distribution, transportation, and storage of
petroleum, coal, natural gas."48 Thus, it cannot be gainsaid that the DOE possesses technical knowledge and special
expertise with respect to practices in the transportation of oil through pipelines.

Moreover, it is notable that the DOE did not only limit itself to the knowledge and proficiency available within its
offices, it has also rallied around the assistance of pertinent bureaus of the other administrative agencies: the
ITDI49of the DOST, which is mandated to undertake technical services including standards, analytical and calibration
services; the MIRDC,50 also of the DOST, which is the sole government entity directly supporting the metals and
engineering industry;51 the EMB52 of the DENR, the agency mandated to implement, among others, RA 6969 (Toxic
Substances and Hazardous and Nuclear Waste Control Act of 1990) and RA 9275 (Philippine Clean Water Act of
2004); and the BOD of the DPWH, which is mandated to conduct, supervise, and review the technical design
aspects of projects of government agencies.53
The specialized knowledge and expertise of the foregoing agencies must, therefore, be availed of to arrive at a
judicious decision on the propriety of allowing the immediate resumption of the WOPL's operation. In a host of
cases, this Court held that when the adjudication of a controversy requires the resolution of issues within the
expertise of an administrative body, such issues must be investigated and resolved by the administrative body
equipped with the specialized knowledge and the technical expertise.54 Hence, the courts, although they may have
jurisdiction and power to decide cases, can utilize the findings and recommendations of the administrative agency
on questions that demand "the exercise of sound administrative discretion requiring the special knowledge,
experience, and services of the administrative tribunal to determine technical and intricate matters of fact."55

Justice Leonen, in his dissent, is of the view that the petition should be denied and the TEPO immediately lifted in
light of the DOE's issuance of a certification attesting to the safety of the WOPL for continued commercial
operations, thereby rendering the instant petition moot and academic, seeking, as it does, the checking of the
pipeline's structural integrity. According to his dissent, the writ of kalikasan issued by the Court has already served
its functions and, therefore, is functus officio. Moreover, he argues that directing the DOE and FPIC to repeat their
previous procedures is tantamount to doubting the agency's performance of its statutorily-mandated tasks, over
which they have the necessary expertise, and implies that said DOE certification is improper, a breach, allegedly, of
the principle of separation of powers.

He also contends that the majority ordered the repetition of the procedures and tests already conducted on the
WOPL because of the fear and uncertainty on its safeness despite the finding of the DOE in favor of its reopening,
taking into consideration the occurrence of numerous pipeline incidents worldwide. The dissent argues that the
precautionary principle should not be so strictly applied as to unjustifiably deprive the public of the benefits of the
activity to be inhibited, and to unduly create other risks.

The dissent's contentions that the case is already moot and academic, that the writ of kalikasan has already served
its function, and that the delay in the lifting of the TEPO may do more harm than good are anchored on the mistaken
premise that the precautionary principle was applied in order to justify the order to the DOE and the FPIC for the
conduct of the various tests anew. The following reasons easily debunk these arguments:

1. The precautionary principle is not applicable to the instant case;

2. The DOE certification is not an absolute attestation as to the WOPL's structural integrity and in fact
imposes several conditions for FPIC's compliance;

3. The DOE itself, in consultation with FPIC and the other concerned agencies, proposed the activities to be
conducted preparatory to the reopening of the pipeline; and

4 . There are no conclusive findings yet on the WOPL's structural integrity.

Section 1, Rule 20 of A.M. No. 09-6-8-SC or the Rules of Procedure for Environmental Cases, on the Precautionary
Principle, provides that "[ w ]hen there is lack of full scientific certainty in establishing a causal link between human
activity and environmental effect, the court shall apply the precautionary principle in resolving the case before it."

According to the dissent, the directive for the repetition of the tests is based on speculations, justified by the
application of said principle. This, however, is not the case. Nowhere did We apply the precautionary principle in
deciding the issue on the WOPL's structural integrity.

The precautionary principle only applies when the link between the cause, that is the human activity sought to be
inhibited, and the effect, that is the damage to the environment, cannot be established with full scientific certainty.
Here, however, such absence of a link is not an issue. Detecting the existence of a leak or the presence of defects
in the WOPL, which is the issue in the case at bar, is different from determining whether the spillage of hazardous
materials into the surroundings will cause environmental damage or will harm human health or that of other
organisms. As a matter of fact, the petroleum leak and the harm that it caused to the environment and to the
residents of the affected areas is not even questioned by FPIC.

It must be stressed that what is in issue in the instant petition is the WOPL's compliance with pipeline structure
standards so as to make it fit for its purpose, a question of fact that is to be determined on the basis of the evidence
presented by the parties on the WOPL's actual state. Hence, Our consideration of the numerous findings and
recommendations of the CA, the DOE, and the amici curiae on the WOPL' s present structure, and not the cited
pipeline incidents as the dissent propounds.

Consider also the fact that it is the DOE itself that imposed several conditions upon FPIC for the resumption of the
operations of the WOPL. This, coupled with the submission by the DOE of its proposed activities and timetable, is a
clear and unequivocal message coming from the DOE that the WOPL's soundness for resumption of and continued
commercial operations is not yet fully determined. And it is only after an extensive determination by the DOE of the
pipeline's actual physical state through its proposed activities, and not merely through a short-form integrity
audit,56that the factual issue on the WOPL's viability can be settled. The issue, therefore, on the pipeline's structural
integrity has not yet been rendered moot and remains to be subject to this Court's resolution. Consequently, We
cannot say that the DOE's issuance of the certification adverted to equates to the writ of kalikasan being functus
officio at this point.

The dissent is correct in emphasizing that We defer to the findings of fact of administrative agencies considering
their specialized knowledge in their field. And We, as a matter of fact, acceded to the DOE' s conclusions on the
necessity of the conduct of the various activities and tests enumerated in Sec. Petilla's letter to this Court dated
August 5, 2014. Hence, Our directive for the DOE to immediately commence the activities enumerated in said
Letter, to determine the pipeline's reliability, and to order its reopening should the DOE find that such is proper.

The dissent also loses sight of the fact that the petition not only seeks the checking of the WOPL's structural
integrity, but also prays for the rehabilitation of the areas affected by the leak, the creation of a special trust fund, the
imposition of liability upon the directors of FPIC, among others. These issues, undoubtedly, are matters that are not
addressed by the DOE certification alone. Furthermore, these are issues that no longer relate to the WOPL' s
structure but to its maintenance and operations, as well as to the residues of the incident. It will, thus, be improper
for Us to simply dismiss the petition on the basis solely of the alleged resolution of only one of several issues, which
purportedly renders the issue on the WOPL' s soundness moot, without disposing of the other issues presented.

Lastly, any delay in the reopening of the WOPL, if said delay is for the purpose of making sure that the pipeline is
commercially viable, is better than hastily allowing its reopening without an extensive check on its structural integrity
when experience shows that there were and may still be flaws in the pipeline. Even the DOE, the agency tasked to
oversee the supply and distribution of petroleum in the country, is well aware of this and even recommended the
checking of the patched portions of the pipeline, among others. In this regard, the Court deems it best to take the
necessary safeguards, which are not similar to applying the precautionary principle as previously explained, in order
to prevent a similar incident from happening in the future.

III.
Propriety of the Creation of a Special Trust Fund

Anent petitioners' prayer for the creation of a special trust fund, We note that under Sec. 1, Rule 5 of the Rules of
Procedure for Environmental Cases, a trust fund is limited solely for the purpose of rehabilitating or restoring the
environment. Said proviso pertinently provides:

SEC. 1. Reliefs in a citizen suit. - If warranted, the court may grant to the plaintiff proper reliefs which shall include
the protection, preservation or rehabilitation of the environment and the payment of attorney's fees, costs of suit and
other litigation expenses. It may also require the violator to submit a program of rehabilitation or restoration of the
environment, the costs of which shall be borne by the violator, or to contribute to a special trust fund for that purpose
subject to the control of the court. (emphasis supplied)

Furthermore, Sec. 15( e ), Rule 7 of the Rules of Procedure for Environmental Cases expressly prohibits the grant of
damages to petitioners in a petition for the issuance of a writ of kalikasan, viz:

Section 15. Judgment. - Within sixty (60) days from the time the petition is submitted for decision, the court shall
render judgment granting or denying the privilege of the writ of kalikasan.

The reliefs that may be granted under the writ are the following:
 xxxx

(e) Such other reliefs which relate to the right of the people to a balanced and healthful ecology or to the protection,
preservation, rehabilitation or restoration of the environment, except the award of damages to individual petitioners.

A reading of the petition and the motion for partial reconsideration readily reveals that the prayer is for the creation
of a trust fund for similar future contingencies. This is clearly outside the limited purpose of a special trust fund under
the Rules of Procedure for Environmental Cases, which is to rehabilitate or restore the environment that has
presumably already suffered. Hence, the Court affirms with concurrence the observation of the appellate court that
the prayer is but a claim for damages, which is prohibited by the Rules of Procedure for Environmental Cases. As
such, the Court is of the considered view that the creation of a special trust fund is misplaced. The present ruling on
petitioners' prayer for the creation of a special trust fund in the instant recourse, however, is without prejudice to the
judgment/s that may be rendered in the civil and/or criminal cases filed by petitioners arising from the same incident
if the payment of damages is found warranted.

IV.
Liability of FPIC, FGC and their respective Directors and Officers

On the last issue of the liability of FPIC, FGC and their respective directors and officers, the CA found FGC not
liable under the TEPO and, without prejudice to the outcome of the civil case (Civil Case No. 11-256, RTC, Branch
58 in Makati City) and criminal complaint (Complaint-Affidavit for Reckless Imprudence, Office of the Provincial
Prosecutor of Makati City) filed against them, the individual directors and officers of FPIC and FGC are not liable in
their individual capacities.

The Court will refrain from ruling on the finding of the CA that the individual directors and officers of FPIC and FGC
are not liable due to the explicit rule in the Rules of Procedure for Environmental cases that in a petition for a writ of
kalikasan, the Court cannot grant the award of damages to individual petitioners under Rule 7, Sec. 15(e) of the
Rules of Procedure for Environmental Cases. As duly noted by the CA, the civil case and criminal complaint filed by
petitioners against respondents are the proper proceedings to ventilate and determine the individual liability of
respondents, if any, on their exercise of corporate powers and the management of FPIC relative to the dire
environmental impact of the dumping of petroleum products stemming from the leak in the WOPL in Barangay
Bangkal, Makati City.

Hence, the Court will not rule on the alleged liability on the part of the FPIC and FGC officials which can, however,
be properly resolved in the civil and criminal cases now pending against them.

Other Matters

The CA's resolution on petitioners' September 9, 2011 Manifestation (Re: Current Developments) with Omnibus
Motion on the remediation plan in Barangay Bangkal by directing the Inter-Agency Committee on Environmental
Health to submit its evaluation of the said plan prepared by CH2M Philippines, Inc., for FPIC to strictly comply with
the stipulations embodied in the permits issued by the DENR, and to get a certification from the DENR of its
compliance thereto is well taken. DENR is the government agency tasked to implement the state policy of
"maintaining a sound ecological balance and protecting and enhancing the quality of the environment"57 and to
"promulgate rules and regulations for the control of water, air, and land pollution."58 It is indubitable that the DENR
has jurisdiction in overseeing and supervising the environmental remediation of Barangay Bangkal, which is
adversely affected by the leak in the WOPL in 2010.

With regard to petitioners' March 29, 2012 Supplemental Manifestation about a recent possible leak in the pipeline,
the CA appropriately found no additional leak. However, due to the devastating effect on the environs in Barangay
Bangkal due to the 2010 leak, the Court finds it fitting that the pipeline be closely and regularly monitored to obviate
another catastrophic event which will prejudice the health of the affected people, and to preserve and protect the
environment not only for the present but also for the future generations to come.

Petitioner's January 10, 2013 Motion for Partial Recommendation of the CA' s Report need not be discussed and
given consideration. As the CA' s Report contains but the appellate court's recommendation on how the issues
should be resolved, and not the adjudication by this Court, there is nothing for the appellate court to reconsider.
As to petitioner's October 2, 2013 Motion for Reconsideration with Motion for Clarification, the matters contained
therein have been considered in the foregoing discussion of the primary issues of this case. With all these, We need
not belabor the other arguments raised by the parties.

IN VIEW OF THE FOREGOING, the Motion for Partial Reconsideration is hereby DENIED. The Motion for
Reconsideration with Motion for Clarification is PARTLY GRANTED. The Court of Appeals' recommendations,
embodied in its December 21, 2012 Report and Recommendation, are hereby ADOPTED with the following
MODIFICATIONS:

I. The Department of Energy (DOE) is hereby ORDERED to oversee the strict implementation of the following
activities:

A. Preparatory to the Test Run of the entire stretch of the WOPL:

1) FPIC shall perform the following:

a. Continue submission of monitoring charts, data/reading, accomplishment reports,

and project status for all related activities/works. Respond to comments and prepare
for site inspection.

b. Continue gas testing along the right-of-way using the monitoring wells or
boreholes. Prepare for inspection of right-of-way and observation of gas testing
activities on monitoring wells and boreholes.

c. Explain the process of the selection of borehole location and identify those located
in pipeline bends, bodies of water, highways, residential areas, repaired portions of
the pipelines, dents and welded joints, as well other notable factors, circumstances,
or exposure to stresses. d. Set up additional boreholes and monitoring wells
sufficient to cover the entire stretch of the WOPL, the number and location of which
shall be determined by the DOE.

e. Continue submitting status report to the concerned government agency/ies relating

to "Project Mojica," or the on-going pipeline segment realignment activity being
undertaken by FPIC to give way to a flood control project of the MMDA in the vicinity
of Mojica St. and Pres. Osmea Highway, and prepare for site inspection.

2) The DOE shall perform the following undertakings:

a. Conduct onsite inspection of the pipeline right-of-way, the area around the WOPL
and the equipment installed underground or aboveground.

b. Review and check the condition of the 22 patches reinforced with Clockspring
sleeves by performing the following:

i. Determine the location of the sleeves

ii. Review the procedure for the repair of the sleeves

iii. Inspect the areas where the affected portions of the WOPL are located
and which are easily accessible.

c. Inspect onsite the cathodic protection rectifier to check the following:

i. old and current readings

ii. the segment/s covered by the cathodic protection system

 iii. review the criteria for prioritization of corrective action.

d. Observe and witness the running/operation of the intelligent and cleaning pigs.

e. Check and calibrate the instruments that will be used for the actual tests on the
pipeline, and validate the calibration certificates of these instruments.

B. During the Actual Test Run:

1) FPIC shall perform the following:

a. Perform Cleaning Pig run and witness the launching and receiving of the intelligent
and cleaning pigs.

b. Demonstrate and observe the various pressure and leakage tests, including the
following:

i. "Blocked-in pressure test" or the pressure test conducted while all the
WOPL's openings are blocked or closed off; and

ii. "In-operation test" or the hourly monitoring of pressure rating after the
pipeline is filled with dyed water and pressurized at a specified rate.

c. Continue, inspect, and oversee the current gas monitoring system, or the
monitoring of gas flow from the boreholes and monitoring wells of the WOPL.

d. Check the mass or volume balance computation during WOPL test run by
conducting:

i. 30 days baseline data generation

ii. Computational analysis and monitoring of the data generated.

II. After FPIC has undertaken the activities prescribed in the preceding paragraph 1, the DOE shall determine if the
activities and the results of the test run warrant the re-opening of the WOPL. In the event that the DOE is satisfied
that the WOPL is safe for continued commercial operations, it shall issue an order allowing FPIC to resume the
operations of the pipeline.

III. Once the WOPL is re-opened, the DOE shall see to it that FPIC strictly complies with the following directives:

a. Continue implementation of its Pipeline Integrity Management System (PIMS), as reviewed by the
DOE, which shall include, but shall not be limited to:

1. the conduct of daily patrols on the entire stretch of the WOPL, every two hours;

2. continued close monitoring of all the boreholes and monitoring wells of the WOPL pipeline;

3. regular periodic testing and maintenance based on its PIMS; and

4. the auditing of the pipeline's mass input versus mass output;

b. submit to the DOE, within ten (10) days of each succeeding month, monthly reports on its
compliance with the above directives and any other conditions that the DOE may impose, the results
of the monitoring, tests, and audit, as well as any and all activities undertaken on the WOPL or in
connection with its operation. The concerned government agencies, namely: the Industrial
Technology Development Institute (ITDI) and the Metals Industry Research and Development
 Center (MIRDC), both under the Department of Science and Technology (DOST), the Environmental
Management Bureau (EMB) of the Department of Environment and Natural Resources (DENR), the
Bureau of Design (BOD) of the Department of Public Works and Highways (DPWH), the University
of the Philippines - National Institute of Geological Science (UP-NI GS) and University of the
Philippines - Institute of Civil Engineering (UP-ICE), the petitioners, intervenors and this Court shall
likewise be furnished by FPIC with the monthly reports. This shall include, but shall not be limited to:
realignment, repairs, and maintenance works; and

c. continue coordination with the concerned government agencies for the implementation of its
projects.1w phi 1

IV. Respondent FPIC is also DIRECTED to undertake and continue the remediation, rehabilitation and restoration of
the affected Barangay Bangkal environment until full restoration of the affected area to its condition prior to the
leakage is achieved. For this purpose, respondent FPIC must strictly comply with the measures, directives and
permits issued by the DENR for its remediation activities in Barangay Bangkal, including but not limited to, the
Wastewater Discharge Permit and Permit to Operate. The DENR has the authority to oversee and supervise the
aforesaid activities on said affected barangay.

V. The Inter-Agency Committee on Environmental Health under the City Government of Makati shall SUBMIT to the
DENR its evaluation of the Remediation Plan prepared by CH2M Hill Philippines, Inc. within thirty (30) days from
receipt hereof.

VI. Petitioners' prayer for the creation of a special trust fund to answer for similar contingencies in the future is
DENIED.

SO ORDERED.

vG.R. No. 209271

INTERNATIONAL SERVICE FOR THE ACQUISITION OF AGRI-BIOTECH APPLICATIONS, INC., Petitioner

vs.
GREENPEACE SOUTHEAST ASIA (PHILIPPINES), MAGSASAKA AT SIYENTIPIKO SA PAGPAPAUNLAD NG
AGRIKULTURA (MASIPAG), REP. TEODORO CASINO, DR. BEN MALAYANG III, DR. ANGELINA GALANG,
LEONARDO AVILA III, CATHERINE UNTALAN, ATTY. MARIA PAZ LUNA, JUANITO MODINA, DAGOHOY
MAGAWAY, DR. ROMEO QUIJANO, DR. WENCESLAO KIAT, JR., ATTY. H. HARRY ROQUE., JR., FORMER
SEN. ORLANDO MERCADO, NOEL CABANGON, MAYOR EDWARD S. HAGEDORN, and EDWIN MARTHINE
LOPEZ, Respondents.
CROP LIFE PHILIPPINES, INC., Petitioner-in-Intervention

x-----------------------x

G.R. No. 209276

ENVIRONMENTAL MANAGEMENT BUREAU OF THE DEPARTMENT OF ENVIRONMENT AND NATURAL

RESOURCES, BUREAU OF PLANT INDUSTRY AND THE FERTILIZER AND PESTICIDE AUTHORITY OF THE
DEPARTMENT OF AGRICULTURE, Petitioners,
vs.
COURT OF APPEALS, GREENPEACE SOUTHEAST ASIA (PHILIPPINES), MAGSASAKA AT SIYENTIPIKO SA
PAGPAPAUNLAD NG AGRIKULTURA (MASIPAG), REP. TEODORO CASINO, DR. BEN MALAYANG III, DR.
ANGELINA GALANG, LEONARDO AVILA III, CATHERINE UNTALAN, ATTY. MARIA PAZ LUNA, JUANITO
MODINA, DAGOHOY MAGAWAY, DR. ROMEO QUIJANO, DR. WENCESLAO KIAT, JR., ATTY. H. HARRY
ROQUE, JR., FORMER SEN. ORLANDO MERCADO, NOEL CABANGON, MAYOR EDWARD S. HAGEDORN,
and EDWIN MARTHINE LOPEZ, Respondents.
CROP LIFE PHILIPPINES, INC., Petitioner-in-Intervention.

x-----------------------x

G.R. No. 209301

UNIVERSITY OF THE PHILIPPINES LOS BANOS FOUNDATION, INC., Petitioner,

vs.
GREENPEACE SOUTHEAST ASIA (PHILIPPINES), MAGSASAKA AT SIYENTIPIKO SA PAGPAPAUNLAD NG
AGRIKULTURA (MASIPAG), REP. TEODORO CASINO, DR. BEN MALAYANG III, DR. ANGELINA GALANG,
LEONARDO AVILA III, CATHERINE UNTALAN, ATTY. MARIA PAZLUNA, JUANITO MODINA, DAGOHOY
MAGAWAY, DR. ROMEO QUIJANO, DR. WENCESLAO KIAT, JR., ATTY. H. HARRY L. ROQUE, JR., FORMER
SEN. ORLANDO MERCADO, NOEL CABANGON, MAYOR EDWARD S. HAGEDORN, and EDWIN MARTHINE
LOPEZ, Respondents.

x-----------------------x

G.R. No. 209430

UNIVERSITY OF THE PHILIPPINES LOS BAOS, Petitioner,

vs.
GREENPEACE SOUTHEAST ASIA (PHILIPPINES), MAGSASAKA AT SIYENTIPIKO SA PAGPAPAUNLAD NG
AGRIKULTURA (MASIPAG), REP. TEODORO CASINO, DR. BEN MALAYANG III, DR. ANGELINA GALANG,
LEONARDO AVILA III, CATHERINE UNTALAN, ATTY. MARIA PAZ LUNA, JUANITO MODINA, DAGOHOY
MAGAWAY, DR. ROMEO QUIJANO, DR. WENCESLAO KIAT, JR., ATTY. H. HARRY L. ROQUE, JR., FORMER
SEN. ORLANDO MERCADO, NOEL CABANGON, MAYOR EDWARD S. HAGEDORN, and EDWIN MARTHINE
LOPEZ, Respondents.

RESOLUTION

PERLAS-BERNABE, J.:

Before the Court are nine (9) Motions for Reconsideration1 assailing the Decision2 dated December 8, 2015 of the
Court (December 8, 2015 Decision), which upheld with modification the Decision3 dated May 17, 2013 and the
Resolution4 dated September 20, 2013 of the Court of Appeals (CA) in CA-G.R. SP No. 00013.

The Facts

The instant case arose from the conduct of field trials for "bioengineered eggplants," known as Bacillus thuringiensis
(Bt) eggplant (Bt talong), administered pursuant to the Memorandum of Undertaking5 (MOU) entered into by herein
petitioners University of the Philippines Los Baos Foundation, Inc. (UPLBFI) and International Service for the
Acquisition of Agri-Biotech Applications, Inc. (ISAAA), and the University of the Philippines Mindanao Foundation,
Inc. (UPMFI), among others. Bt talong contains the crystal toxin genes from the soil bacterium Bt, which produces
the CrylAc protein that is toxic to target insect pests. The Cry1Ac protein is said to be highly specific to lepidopteran
larvae such as the fruit and shoot borer, the most destructive insect pest to eggplants.6

From 2007 to 2009, petitioner University of the Philippines Los Banos (UPLB), the implementing institution of the
field trials, conducted a contained experiment on Bt talong under the supervision of the National Committee on
Biosafety of the Philippines (NCBP).7 The NCBP, created under Executive Order No. (EO) 430,8 is the regulatory
body tasked to: (a) "identify and evaluate potential hazards involved in initiating genetic engineering experiments or
the introduction of new species and genetically engineered organisms and recommend measures to minimize risks";
and (b) ''formulate and review national policies and guidelines on biosafety, such as the safe conduct of work on
genetic engineering, pests and their genetic materials for the protection of public health, environment[,] and
personnel[,] and supervise the implementation thereof."9 Upon the completion of the contained experiment, the
NCBP issued a Certificate10 therefor stating that all biosafety measures were complied with, and no untoward
incident had occurred.11

On March 16, 2010 and June 28, 2010, the Bureau of Plant Industries (BPI) issued two (2)-year Biosafety
Permits12for field testing of Bt talong13after UPLB's field test proposal satisfactorily completed biosafety risk
assessment for field testing pursuant to the Department of Agriculture's (DA) Administrative Order No. 8, series of
200214 (DAO 08-2002),15 which provides for the rules and regulations for the importation and release into the
environment of plants and plant products derived from the use of modern biotechnology.16 Consequently, field
testing proceeded in approved trial sites in North Cotabato, Pangasinan, Camarines Sur, Davao City, and Laguna.17

On April 26, 2012, respondents Greenpeace Southeast Asia (Philippines) (Greenpeace), Magsasaka at Siyentipiko
sa Pagpapaunlad ng Agrikultura (MASIPAG), and others (respondents) filed before the Court a Petition for Writ of
Continuing Mandamus and Writ of Kalikasan with Prayer for the Issuance of a Temporary Environmental Protection
Order (TEPO)18 (petition for Writ of Kalikasan) against herein petitioners the Environmental Management Bureau
(EMB) of the Department of Environment and Natural Resources (DENR), the BPI and the Fertilizer and Pesticide
Authority (FPA) of the DA, UPLBFI, and ISAAA, and UPMFI, alleging that the Bt talong field trials violated their
constitutional right to health and a balanced ecology considering, among others, that: (a) the Environmental
Compliance Certificate (ECC), as required by Presidential Decree No. (PD) 1151,19 was not secured prior to the field
trials;20 (b) the required public consultations under the Local Government Code (LGC) were not complied with;21 and
(c) as a regulated article under DAO 08-2002, Bt talong is presumed harmful to human health and the environment,
and that there is no independent, peer-reviewed study showing its safety for human consumption and the
environment.22 Further, they contended that since the scientific evidence as to the safety of Bt talong remained
insufficient or uncertain, and that preliminary scientific evaluation shows reasonable grounds for concern, the
precautionary principle should be applied and, thereby, the field trials be enjoined.23

On May 2, 2012, the Court issued24 a Writ of Kalikasan against petitioners (except UPLB25) and UPMFI, ordering
them to make a verified return within a non-extendible period of ten (10) days, as provided for in Section 8, Rule 7 of
the Rules of Procedure for Environmental Cases.26 Thus, in compliance therewith, ISAAA, EMB/BPI/FPA, UPLBFI,
and UPMFI27 filed their respective verified returns,28 and therein maintained that: (a) all environmental laws were
complied with, including the required public consultations in the affected communities; (b) an ECC was not required
for the field trials as it will not significantly affect the environment nor pose a hazard to human health; (c) there is a
plethora of scientific works and literature, peer-reviewed, on the safety of Bt talong for human consumption; (d) at
any rate, the safety of Bt talong for human consumption is irrelevant because none of the eggplants will be
consumed by humans or animals and all materials not used for analyses will be chopped, boiled, and buried
following the conditions of the Biosafety Permits; and (e) the precautionary principle could not be applied as the field
testing was only a part of a continuing study to ensure that such trials have no significant and negative impact on the
environment.29

On July 10, 2012, the Court issued a Resolution30 referring the case to the Court of Appeals for acceptance of the
return of the writ and for hearing, reception of evidence, and rendition of judgment.31 In a hearing before the CA on
August 14, 2012, UPLB was impleaded as a party to the case and was furnished by respondents a copy of their
petition. Consequently the CA directed UPLB to file its comment to the petition32 and, on August 24, 2012, UPLB
filed its Answer33 adopting the arguments and allegations in the verified return filed by UPLBFI. On the other hand, in
a Resolution34 dated February 13, 2013, the CA discharged UPMFI as a party to the case pursuant to the
Manifestation and Motion filed by respondents in order to expedite the proceedings and resolution of the latter's
petition.

The CA Ruling

In a Decision35 dated May 17, 2013, the CA ruled in favor of respondents and directed petitioners to pem1anently
cease and desist from conducting the Bt talong field trials.36 At the outset, it did not find merit in petitioners'
contention that the case should be dismissed on the ground of mootness, noting that the issues raised by the latter
were "capable of repetition yet evading review" since the Bt talong field trial was just one of the phases or stages of
an overall and bigger study that is being conducted in relation to the said genetically-modified organism.37 It then
held that the precautionary principle set forth under Section 1,38 Rule 20 of the Rules of Procedure for Environmental
Cases39 is relevant, considering the Philippines' rich biodiversity and uncertainty surrounding the safety of Bt
talong. It noted the possible irreversible effects of the field trials and the introduction of Bt talong to the market, and
found the existing regulations issued by the DA and the Department of Science and Technology (DOST) insufficient
to guarantee the safety of the environment and the health of the people.40

Aggrieved, petitioners separately moved for reconsideration.41 However, in a Resolution42 dated September 20, 2013,
the CA denied the same and remarked that introducing genetically modified plant into the ecosystem is an
ecologically imbalancing act.43 Anent UPLB 's argument that the Writ of Kalikasan violated its right to academic
freedom, the CA emphasized that the writ did not stop the research on Bt talong but only the procedure employed in
conducting the field trials, and only at this time when there is yet no law ensuring its safety when introduced to the
environment.44

Dissatisfied, petitioners filed their respective petitions for review on certiorari before this Court.

The Proceedings Before the Court

In a Decision45 dated December 8, 2015, the Court denied the petitions and accordingly, affinned with modification
the ruling of the CA.46 Agreeing with the CA, the Court held that the precautionar; principle applies in this case since
the risk of harm from the field trials of Bt talong remains uncertain and there exists a possibility of serious and
irreversible harm. The Court observed that eggplants are a staple vegetable in the country that is mostly grown by
small-scale farmers who are poor and marginalized; thus, given the country's rich biodiversity, the consequences of
contamination and genetic pollution would be disastrous and irreversible.47

The Court likewise agreed with the CA in not dismissing the case for being moot and academic despite the
completion and termination of the Bt talong field trials, on account of the following exceptions to the mootness
principle: (a) the exceptional character of the situation and the paramount public interest is involved; and (b) the
case is capable of repetition yet evading review.48

Further, the Court noted that while the provisions of DAO 08-2002 were observed, the National Biosafety
Framework (NBF) established under EO 514, series of 200649 which requires public participation in all stages of
biosafety decision-making, pursuant to the Cartagena Protocol on Biosafety50 which was acceded to by the
Philippines in 2000 and became effective locally in 2003, was not complied with.51 Moreover, the field testing should
have been subjected to Environmental Impact Assessment (EIA), considering that it involved new technologies with
uncertain results.52

Thus, the Court permanently enjoined the field testing of Bt talong. In addition, it declared DAO 08-2002 null and
void for failure to consider the provisions of the NBF. The Court also temporarily enjoined any application for
contained use, field testing, propagation, commercialization, and importation of genetically modified organisms until
a new administrative order is promulgated in accordance with law.53

The Issues Presented in the Motions for Reconsideration

Undaunted, petitioners moved for reconsideration,54 arguing, among others, that: (a) the case should have been
dismissed for mootness in view of the completion and termination of the Bt talong field trials and the expiration of the
Biosafety Permits;55 (b) the Court should not have ruled on the validity of DAO 08-2002 as it was not raised as an
issue;56 and (c) the Court erred in relying on the studies cited in the December 8, 2015 Decision which were not
offered in evidence and involved Bt corn, not Bt talong.57

In their Consolidated Comments,58 respondents maintain, in essence, that: (a) the case is not mooted by the
completion of the field trials since field testing is part of the process of commercialization and will eventually lead to
propagation, commercialization, and consumption of Bt talong as a consumer product;59 (b) the validity of DAO 08-
2002 was raised by respondents when they argued in their petition for Writ of Kalikasan that such administrative
issuance is not enough to adequately protect the Constitutional right of the people to a balanced and healthful
ecology;60 and (c) the Court correctly took judicial notice of the scientific studies showing the negative effects
of Bt technology and applied the precautionary principle.61

The Court's Ruling

The Court grants the motions for reconsideration on the ground of mootness.

As a rule, the Court may only adjudicate actual, ongoing controversies.62 The requirement of the existence of a
"case" or an "actual controversy" for the proper exercise of the power of judicial review proceeds from Section 1,
Article VIII of the 1987 Constitution:

Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established
by law.

Judicial power includes the duty of the comis of justice to settle actual controversies involving rights which are
legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.
(Emphasis supplied)

Accordingly, the Court is not empowered to decide moot questions or abstract propositions, or to declare principles
or rules of law which cannot affect the result as to the thing in issue in the case before it. In other words, when a
case is moot, it becomes non-justiciable.63

An action is considered "moot" when it no longer presents a justiciable controversy because the issues involved
have become academic or dead or when the matter in dispute has already been resolved and hence, one is not
entitled to judicial intervention unless the issue is likely to be raised again between the parties. There is nothing for
the court to resolve as the determination thereof has been overtaken by subsequent events.64

Nevertheless, case law states that the Court will decide cases, otherwise moot, if: first, there is a grave violation of
the Constitution; second, the exceptional character of the situation and the paramount public interest are
involved; third, when the constitutional issue raised requires formulation of controlling principles to guide the bench,
the bar, and the public; and fourth, the case is capable of repetition yet evading review.65 Thus, jurisprudence
recognizes these four instances as exceptions to the mootness principle.

In the December 8, 2015 Decision of the Court, it was held that (a) the present case is of exceptional character and
paramount public interest is involved, and (b) it is likewise capable of repetition yet evading review. Hence, it was
excepted from the mootness principle.66 However, upon a closer scrutiny of the parties' arguments, the Court
reconsiders its ruling and now finds merit in petitioners' assertion that the case should have been dismissed for
being moot and academic, and that the aforesaid exceptions to the said rule should not have been applied.

I. On the paramount public interest exception.

Jurisprudence in this jurisdiction has set no hard-and-fast rule in determining whether a case involves paramount
public interest in relation to the mootness principle. However, a survey of cases would show that, as a common
guidepost for application, there should be some perceivable benefit to the public which demands the Court to
proceed with the resolution of otherwise moot questions.

In Gonzales v. Commission on Elections,67an action for declaratory judgment assailing the validity of Republic Act
No. (RA) 4880,68 which prohibits the early nomination of candidates for elective offices and early election campaigns
or partisan political activities became moot by reason of the holding of the 1967 elections before the case could be
decided. Nonetheless, the Court treated the petition as one for prohibition and rendered judgment in view of "the
paramount public interest and the undeniable necessity for a ruling, the national elections [of 1969] being barely six
months away."69

In De Castro v. Commission on Elections,70 the Court proceeded to resolve the election protest subject of that case
notwithstanding the supervening death of one of the contestants. According to the Court, in an election contest,
there is a paramount need to dispel the uncertainty that beclouds the real choice of the electorate.71

In David v. Macapagal-Arroyo,72the Court ruled on the constitutionality of Presidential Proclamation No. 1017, s.
2006,73 which declared a state of National Emergency, even though the same was lifted before a decision could be
rendered. The Court explained that the case was one of exceptional character and involved paramount public
interest, because the people's basic rights to expression, assembly, and of the press were at issue.74
In Constantino v. S'andiganbayan,75 both of the accused were found guilty of graft and corrupt practices under
Section 3 (e) of RA 3019.76 One of the accused appealed the conviction, while the other filed a petition
for certiorari before the Court. While the appellant died during the pendency of his appeal, the Court still ruled on the
merits thereof considering the exceptional character of the appeals in relation to each other, i.e., the two petitions
were so intertwined that the absolution of the deceased was determinative of the absolution of the other accused.77

More recently, in Funa v. Manila Economic and Cultural Office (MECO),78the petitioner prayed that the Commission
on Audit (COA) be ordered to audit the MECO which is based in Taiwan, on the premise that it is a government-
owned and controlled corporation.79 The COA argued that the case is already moot and should be dismissed, since it
had already directed a team of auditors to proceed to Taiwan to audit the accounts of MECO.80 Ruling on the merits,
the Court explained that the case was of paramount public interest because it involved the COA's performance of its
constitutional duty and because the case concerns the legal status of MECO, i.e., whether it may be considered as
a government agency or not, which has a direct bearing on the country's commitment to the One China Policy of the
People's Republic of China.81

In contrast to the foregoing cases, no perceivable benefit to the public - whether rational or practical - may be gained
by resolving respondents' petition for Writ of Kalikasan on the merits.

To recount, these cases, which stemmed from herein respondents petition for Writ of Kalikasan, were mooted by the
undisputed expiration of the Biosafety Permits issued by the BPI and the completion and termination of the Bt
talong field trials subject of the same.82 These incidents effectively negated the necessity for the reliefs sought by
respondents in their petition for Writ of Kalikasan as there was no longer any field test to enjoin. Hence, at the time
the CA rendered its Decision dated May 17, 2013, the reliefs petitioner sought and granted by the CA were no
longer capable of execution.

At this juncture, it is important to understand that the completion and termination of the field tests do not mean that
herein petitioners may inevitably proceed to commercially propagate Bt talong.83 There are three (3) stages before
genetically-modified organisms (GMOs) may become commercially available under DAO 08-200284 and each stage
is distinct, such that "[s]ubsequent stages can only proceed if the prior stage/s [is/]are completed and clearance is
given to engage in the next regulatory stage."85 Specifically, before a genetically modified organism is allowed to be
propagated under DAO 08-2002: (a) a permit for propagation must be secured from the BPI; (b) it can be shown that
based on the field testing conducted in the Philippines, the regulated article will not pose any significant risks to the
environment; (c) food and/or feed safety studies show that the regulated article will not pose any significant risks to
human and animal health; and (d) if the regulated article is a pest-protected plant, its transformation event has been
duly registered with the FPA.86

As the matter never went beyond the field testing phase, none of the foregoing tasks related to propagation were
pursued or the requirements therefor complied with. Thus, there are no guaranteed after-effects to the already
concluded Bt talong field trials that demand an adjudication from which the public may perceivably benefit. Any
future threat to the right ,of herein respondents or the public in general to a healthful and balanced ecology is
therefore more imagined than real.

In fact, it would appear to be more beneficial to the public to stay a verdict on the safeness of Bt talong - or GMOs,
for that matter - until an actual and justiciable case properly presents itself before the Court. In his Concurring
Opinion87 on the main, Associate Justice Marvic M.V.F. Leonen (Justice Leonen) had aptly pointed out that "the
findings [resulting from the Bt talong field trials] should be the material to provide more rigorous scientific analysis of
the various claims made in relation to Bt talong."88 True enough, the concluded field tests - like those in these cases
would yield data that may prove useful for future studies and analyses. If at all, resolving the petition for Writ
of Kalikasan would unnecessarily arrest the results of further research and testing on Et talong, and even GMOs in
general, and hence, tend to hinder scientific advancement on the subject matter.

More significantly, it is clear that no benefit would be derived by the public in assessing the merits of field trials
whose parameters are not only unique to the specific type of Bt talong tested, but are now, in fact, rendered
obsolete by the supervening change in the regulatory framework applied to GMO field testing. To be sure, DAO 08-
2002 has already been superseded by Joint Department Circular No. 1, series of 201689 (JDC 01-2016), issued by
the Department of Science and Technology (DOST), the DA, the DENR, the Department of Health (DOH), and the
Department of Interior and Local Government (DILG), which provides a substantially different regulatory framework
from that under DAO 08-2002 as will be detailed below. Thus, to resolve respondents' petition for Writ
of Kalikasan on its merits, would be tantamount to an unnecessary scholarly exercise for the Court to assess
alleged violations of health and environmental rights that arose from a past test case whose bearings do not find any
- if not minimal -- relevance to cases operating under today's regulatory framework.

Therefore, the paramount public interest exception to the mootness rule should not have been applied. 1wphi 1

II. The case is not one capable of repetition vet evading review.

Likewise, contrary to the Court's earlier ruling,90 these cases do not fall under the "capable of repetition yet evading
review" exception.

The Court notes that the petition for Writ of Kalikasan specifically raised issues only against the field testing of Bt
talong under the premises 'of DAO 08,..2002,91 i.e., that herein petitioners failed to: (a) fully inform the eople
regarding the health, environment, and other hazards involved;92 and (b) conduct any valid risk assessment before
conducting the field trial.93 As further pointed out by Justice Leonen, the reliefs sought did not extend far enough to
enjoin the use of the results of the field trials that have been completed. Hence, the petition's specificity prevented it
from falling under the above exception to the mootness rule.94

More obviously, the supersession of DAO 08-2002 by JDC 01-2016 clearly prevents this case from being one
capable of repetition so as to warrant review despite its mootness. To contextualize, JDC 01-2016 states that:

Section 1. Applicability. This Joint Department Circular shall apply to the research, development, handling and use,
transboundary movement, release into the environment, and management of genetically-modified plant and plant
products derived from the use of modern technology, included under "regulated articles."

As earlier adverted to, with the issuance of JDC 01-2016, a new regulatory framework in the conduct of field testing
now applies.

Notably, the new framework under JDC 01-2016 is substantially different from that under DAO 08-2002. In fact, the
new parameters in JDC 01-2016 pertain to provisions which prompted the Court to invalidate D'AO 08-2002. In the
December 8, 2015 Decision of the Court, it was observed that: (a) DAO 08-2002 has no mechanism to mandate
compliance with inten1ational biosafety protocols;95 (b) DAO 08-2002 does not comply with the transparency and
public participation requirements under the NBF;96 and (c) risk assessment is conducted by an informal group, called
the Biosafety Advisory Team of the DA, composed of representatives from the BPI, Bureau of Animal Industry, FPA,
DENR, DOH, and DOST.97

Under DAO 08-2002, no specific guidelines were used in the conduct of risk assessment, and the DA was allowed
to consider the expert advice of, and guidelines developed by, relevant inteniational organizations and regulatory
authorities of countries with significant experience in the regulatory supervision of the regulated article.98 However,
under JDC 01-2016, the CODEX Alimentarius Guidelines was adopted to govern the risk assessment of activities
involving the research, development, handling and use, transboundary movement, release into the environment,
and management of genetically modified plant and plant products derived from the use of modem
biotechnology.99Also, whereas DAO 08-2002 was limited to the DA's authority in regulating the importation and
release into the environment of plants and plant products derived from the use of modern biotechnology,100 under
JDC 01-2016, various relevant government agencies such as the DOST, DOH, DENR, and the DILG now
participate in all stages of the biosafety decision-making process, with the DOST being the central and lead
agency.101

JDC 01-2016 also provides for a more comprehensive avenue for public participation in cases involving field trials
and requires applications for permits and permits already issued to be made public by posting them online in the
websites of the NCBP and the BPI.102 The composition of the Institutional Biosafety Committee (IBC) has also been
modified to include an elected local official in the locality where the field testing will be conducted as one of the
community representatives.103 Previously, under DAO 08-2002, the only requirement for the community
representatives is that they shall not be affiliated with the applicant and shall be in a position to represent the
interests of the communities where the field testing is to be conducted.104
JDC 01-2016 also prescribes additional qualifications for the members of the Scientific and Technical Review Panel
(STRP), the pool of scientists that evaluates the risk assessment submitted by the applicant for field trial,
commercial propagation, or direct use of regulated articles. Aside from not being an official, staff or employee of the
DA or any of its attached agencies, JDC 01-2016 requires that members of the STRP: (a) must not be directly or
indirectly employed or engaged by a company or institution with pending applications for pennits under JDC 01-
2016; (b) must possess technical expertise in food and nutrition, toxicology, ecology, crop protection, environmental
science, molecular biology and biotechnology, genetics, plant breeding, or animal nutrition; and (c) must be well-
respected in the scientific community.105

Below is a tabular presentation of the differences between the relevant portions of DAO 08-2002 and JDC 01-2016:

DAO 08-2002 JDC 01-2016

1. As to coverage and government participation

WHEREAS, under Title IV, Chapter 4, Section ARTICLE I. GENERAL PROVISIONS

19 of the Administrative Code of 1987, the
Department of Agriculture, through the Bureau
of Plant Industry, is responsible for the
production of improved planting materials and
protection of agricultural crops from pests and
diseases; and
xxxx
PART I
GENERAL PROVISIONS
Section 1. Applicability. This Joint
Department Circular shall apply to the
research, development, handling and use,
transboundary movement, release into the
environment, and management of genetically-
modified plant and plant products derived from
the use of modern biotechnology, included
under "regulated articles."
xxxx

xxxx ARTICLE III. ADMINISTRATIVE

PART I FRAMEWORK
GENERAL PROVISIONS
Section 4. Role of National Government
xxxx Agencies Consistent with the NBF and the
laws granting their powers and functions,
Section 2 national government agencies shall have the
Coverage following roles:

A. Scope - This Order covers the importation
or release into the environment of: 1. Any
plant which has been altered or produced
through the use of modem biotechnology if the
donor organism, host organism, or vector or
vector agent belongs to any of the genera or
taxa classified by BPI as meeting the
definition of plant pest or is a medium for the
introduction of noxious weeds; or
2. Any plant or plant product altered or
produced through the use of modern
biotechnology which may pose significant
risks to human health and the environment
based on available scientific and technical
information.
B. Exceptions. - This Order shall not apply to
the contained use of a regulated article, which
A. [DA]. As the principal agency of the
Philippine Government responsible for the
promotion of agricultural and rural growth and
development so as to ensure food security
and to contribute to poverty
alleviation, the DA shall take the lead in
addressing biosafety issues related to the
country's agricultural productivity and food
security.x x x.
B. [DOST]. As the premier science and
technology body in the country, the DOST
shall take the lead in ensuring that the best
available science is utilized and applied in
adopting biosafety policies, measures and
guidelines, and in making biosafety decision.
is within the regulatory supervision of NCBP.
2. As to guidelines in risk assessment
PART I
GENERAL PROVISIONS
xxxx
Section 3
Risk Assessment
A. Principles of Risk Assessment - No
regulated article shall be allowed to be
imported or released into the environment
without the conduct of a risk assessment
performed in accordance with this Order. The
following principles shall be followed when
performing a risk assessment to determine
whether a regulated article poses significant
risks to human health and the environment:
1. The risk assessment shall be carried out in
a scientifically sound and transparent manner
based on available scientific and technical
information. The expert advice of, and
guidelines developed by, relevant international
organizations and regulatory authorities of
countries with significant experience in the
regulatory supervision of the regulated article
shall be taken into account in the conduct of
risk assessment.
x x xx
x xx.
C. [DENR]. As the primary government
agency responsible for the conservation
management, development and proper use of
the country's environment and natural
resources, the DENR shall ensure that
environmental assessments are done and
impacts identified in biosafety decisions. x x x.
D. [DOH]. The DOH, as the principal authority
on health, shall formulate guidelines in
assessing the health impacts posed by
modern biotechnology and its applications. x x
x.
E. [DILG]. The DILG shall coordinate with the
DA, DOST, DENR and DOH in overseeing the
implementation of this Circular in relation to
the activities that are to be implemented in
specific LGUs, particulady in relation to the
conduct of public consultations as required
under the Local Government Code. x x x.
ARTICLE II. BIOSAFETY DECISIONS
Section 3. Guidelines in Making Biosafety
Decisions
The principles under the NBF shall guide
concerned agencies in making biosafety
decisions, including:
xxxx
B. Risk Assessment. Risk assessment shall
be mandatory and central in making biosafety
decisions, consistent with policies and
standards on risk assessment issued by the
NCBP; and guided by Annex III of the
Cartagena Protocol on Biosafety. Pursuant to
the NBF, the following principles shall be
followed when performing a risk assessment
to determine whether a regulated article poses
significant risks to human health and the
environment.
1. The risk assessment shall be carried out in
a scientifically sound and transparent manner
based on available scientific and technical
information. The expert advice of and
guidelines developed by, relevant international
organizations, including intergovernmental
bodies, and regulatory authorities of countries
with significant experience in the regulatory
supervision of the regulated article shall be
 taken into account. In the conduct of risk
assessment, CODEX Alimentarius Guidelines
on the Food Safety Assessment of Foods
Derived from the Recombinant-DNA Plants
shall internationally adopted as well as other
internationally accepted consensus
documents.

x x x x (Underscoring supplied)
3. As to public participation

PART III ARTICLE V. FIELD TRIAL OF REGULATED

APPROVAL PROCESS FOR FIELD ARTICLES
TESTING OF REGULATE ARTICLES
Section 12. Public Participation for Field
xxxx Trial

Section 8 A. The BPI shall make public all applications

and Biosafety Permits for Field Trial through
Requirements for Field Testing posting on the NCBP and BPI websites, and
in the offices of the DA and DOST in the
xxxx province, city, or municipality where the field
trial will be conducted.
G. Public Consultation. - The applicant, acting
through its IBC, shall notity and invite x x xx
comments on the field testing proposal from
the barangays and city/municipal
governments with jurisdiction over the field
test sites. The IBC shall post for three (3)
consecutive weeks copies of the Public
Information Sheet for Field Testing approved
by the BPI in at least three (3) conspicuous
places in each of the concerned barangay and
city/municipal halls. The Public Information
Sheet for Field Testing shall, among others,
invite interested parties to send their
comments on the proposed field testing to BPI
within a period of thirty (30) days from the
date of posting. It shall be m a language
understood in the community. During the
comment period, any interested person may
submit to BPI written comments regarding the
application. The applicant shall submit proof of
posting in the form of certifications from the
concerned barangay captains and
city/municipal mayors or an affidavit stating
the dates and places of posting duly executed
by the responsible officer or his duly
authorized representative.

4. As to membership in the Institutional Biosafety Committee

PART I ARTICLE III. ADMINISTRATIVE
GENERAL PROVISIONS
FRAMEWORK
Section 1
Definition of Terms
xxxx
L. "IBC" means the Institutional Biosafety
Committee established by an applicant in
preparation for the field testing of a regulated
article and whose membership has been
approved by BPI. The JBC shall be
responsible for the initial evaluation of the risk
assessment and risk management strategies
of the applicant for field testing. It shall be
composed of at least five (5) members, three
(3) of whom shall be designated as "scientist-
members" who shall possess scientific and
technological knowledge and expertise
sufficient to enable them to evaluate and
monitor properly any work of the applicant
relating to the field testing of a regulated
article. The other members, who shall be
designated as "community representatives",
shall not be affiliated with the applicant apart
from being members of its IBC and shall be in
a position to represent the interests of the
communities where the field testing is to be
conducted. For the avoidance of doubt, NCBP
shall be responsible for approving the
membership of the IBC for contained use of a
regulated article.
x x x x (Underscoring supplied)
5. As to the composition and qualifications of the members of the Scientific and
Technical Review
Panel
PART I
GENERAL PROVISIONS
Section 1
xxxx
Section 6. Institutional Biosafety
Committee
The company or institution applying for and
granted permits under this Circular shall
constitute an IBC prior to the contained use,
confined test, or field trial of a regulated
article. The membership of the IBC shall be
approved by the DOST-BC for contained use
or confined test, or by the DA-BC for field trial.
The IBC is responsible for the conduct of the
risk assessment and preparation of risk
management strategies of the applicant for
contained use, confined test, or field trial. It
shall make sure that the environment and
human health are safeguarded in the conduct
of any activity involving regulated articles.
The IBC shall be composed of at least five (5)
members, three (3) of whom shall be
designated, as scientist-members and two (2)
members shall be community representatives.
All scientist-members must possess scientific
or technological knowledge and expertise
sufficient to enable them to property evaluate
and monitor any work involving regulated
articles conducted by the applicant.
The community regresentative must not be
affiliated with the applicant, and must be in a
position to regresent the interests of the
communities where the activities are to be
conducted. One of the community
regresentatives shall be an elected official of
the LGU. The other community representative
shall be selected from the residents who are
members of the Civil Society Organizations
represented in the Local Poverty Reduction
Action Team, pursuant to DILG Memorandum
Circular No. 2015-45. For multi-location trials,
community representatives of the IBC shall be
designated per site. x x x. (Underscoring
supplied)
ARTICLE III. ADMINISTRATIVE
FRAMEWORK
xxxx
Section 7. Scientific and Technical Review
Panel (STRP) The DA shall create a Scientific
 Definition of Terms
xxxx
EE. "STRP" means the Scientific and
Technical Review Panel created by BPI as an
advisory body, composed of at least three
(3) reputable and independent scientists who
shall not be employees of the Department and
who have the relevant professional
background necessary to evaluate the
potential risks of the proposed activity to
human health and the environment based on
available scientific and technical information.
x x x x (Underscoring supplied)
and Technical Review Panel composed of a
pool of non-DA scientists with expertise in the
evaluation of the potential risks of regulated
articles to the environment and health. x x x
xxxx
The DA shall select scientists/experts in the
STRP, who shall meet the following
qualifications:
A. Must not be an official, staff or employee of
the DA or any of its attached agencies;
B. Must not be directly or indirectly employed
or engaged by a company or institution with
pending applications for permits covered by
this Circular;

C. Possess technical expertise in at least one

of the following fields: food and nutrition;
toxicology, ecology, crop protection,
environmental science, molecular biology and
biotechnology, genetics, plant breeding,
animal nutrition; and

D. Well-respected in the scientific community

as evidenced by positions held in science-
based organizations, awards and
recognitions, publications in local and
international peer-reviewed scientific journals.

x x x x (Underscoring supplied)

Based on the foregoing, it is apparent that the regulatory framework now applicable in conducting risk assessment
in matters involving the research, development, handling, movement, and release into the environment of
genetically modified plant and plant products derived from the use of modem biotechnology is substantially different
from that which was applied to the subject field trials. In this regard, it cannot be said that the present case is one
capable of repetition yet evading review.

The essence of cases capable of repetition yet evading review was succinctly explained by the Court in Belgica v.
Ochoa, Jr.,106 where the constitutionality of the Executive Department's lump-sum, discretionary funds under the
2013 General Appropriations Act, known as the Priority Development Assistance Fund (PDAF), was assailed. In that
case, the Court rejected the view that the issues related thereto had been rendered moot and academic by the
reforms undertaken by the Executive Department and former President Benigno Simeon S. Aquino III's declaration
that he had already "abolished the PDAF." Citing the historical evolution of the ubiquitous Pork Barrel System, which
was the source of the PDAF, and the fact that it has always been incorporated in the national budget which is
enacted annually, the Court ruled that it is one capable of repetition yet evading review, thus:

Finally, the application of the fourth exception [to the rule on mootness] is called for by the recognition that the
preparation and passage of the national budget is, by constitutional imprimatur, an affair of annual
occurrence. The relevance of the issues before the Court does not cease with the passage of a "PDAF-free budget
for 2014." The evolution of the "Pork Barrel System," by its multifarious iterations throughout the course of
history, lends a semblance of truth to petitioners' claim that "the same dog will just resurface wearing a
different collar." In Sanlakas v. Executive Secretary, the government had already backtracked on a previous
course of action yet the Court used the "capable of repetition but evading review" exception in order "[t]o prevent
similar questions from re-emerging." The situation similarly holds true to these cases. Indeed, the myriad of issues
underlying the manner in which certain public funds are spent, if not resolved at this most opportune time, are
capable of repetition and hence; must not evade judicial review.107 (Emphases supplied)

Evidently, the "frequent" and "routinary" nature of the Pork Barrel Funds and the PDAF are wanting herein. To
reiterate, the issues in these cases involve factual considerations which are peculiar only to the controversy at hand
since the petition for Writ of Kalikasan is specific to the field testing of Bt talong and does not involve other GMOs.

At this point, the Court discerns that there are two (2) factors to be considered before a case is deemed one capable
of repetition yet evading review: (1) the challenged action was in its duration too short to be fully litigated prior to its
cessation or expiration; and (2) there was a reasonable expectation that the same complaining party would be
subjected to the same action.

Here, respondents cannot claim that the duration of the subject field tests was too short to be fully litigated. It must
be emphasized that the Biosafety Permits for the subject field tests were issued on March 16, 2010 and June 28,
2010, and were valid for two (2) years. However, as aptly pointed out by Justice Leonen, respondents filed their
petition for Writ of Kalikasan only on April 26, 2012 - just a few months before the Biosafety Permits expired and
when the field testing activities were already over.108 Obviously, therefore, the cessation of the subject field tests
before the case could be resolved was due to respondents' own inaction.

Moreover, the situation respondents complain of is not susceptible' to repetition. As discussed above, DAO 08-2002
has already been superseded by JDC 01-2016. Hence, future applications for field testing will be governed by JDC
01-2016 which, as illustrated, adopts a regulatory framework that is substantially different from that of DAO 08-2002.

Therefore, it was improper for the Court to resolve the merits of the case which had become moot in view of the
absence of any valid exceptions to the rule on mootness, and to thereupon rule on the objections against the validity
and consequently nullify DAO 08-2002 under the premises of the precautionary principle.

In fact, in relation to the latter, it is observed that the Court should not have even delved into the constitutionality of
DAO 08-2002 as it was merely collaterally challenged by respondents, based on the constitutional precepts of the
people's rights to infonnation on matters of public concern, to public participation, to a balanced and healthful
ecology, and to health.109 A cursory perusal of the petition for Writ of Kalikasan filed by respondents on April 26, 2012
before the Court shows that they essentially assail herein petitioners' failure to: (a) fully infom1 the people regarding
the health, environment, and other hazards involved;110 and (b) conduct any valid risk assessment before conducting
the field trial.111 However, while the provisions of DAO 08-2002 were averred to be inadequate to protect (a) the
constitutional right of the people to a balanced and healthful ecology since "said regulation failed, among others, to
anticipate 'the public implications caused by the importation of GMOs in the Philippines"';112and (b) "the people from
the potential harm these genetically modified plants and genetically modified organisms may cause human health
and the environment, [and] thus, x x x fall short of Constitutional compliance,"113 respondents merely prayed for
its amendment, as well as that of the NBF, to define or incorporate "an independent, transparent, and
comprehensive scientific and socio-economic risk assessment, public information, consultation, and participation,
and providing for their effective implementation, in accord with international safety standards[.]"114 This attempt to
assail the constitutionality of the public info1mation and consultation requirements under DAO 08-2002 and the NBF
constitutes a collateral attack on the said provisions of law that runs afoul of the wdlsettled rule that the
constitutionality of a statute cannot be collaterally attacked as constitutionality issues must be pleaded directly and
not collaterally.115 Verily, the policy of the courts is to avoid ruling on constitutional questions and to presume that the
acts of the political departments are valid, absent a clear and unmistakable showing to the contrary, in deference to
the doctrine of separation of powers. This means that the measure had first been carefuliy studied by the executive
department and found to be in accord with the Constitution before it was finally enacted and approved.116

All told, with respondents' petition for Writ of Kalikasan already mooted by the expiration of the Biosafoty Permits
and the completion of the field trials subject of these cases, and with none of the exceptions to the mootness
principle properly attending, the Court grants the instant motions for reconsideration and hereby dismisses the
aforesaid petition. With this pronouncement, no discussion on the substantive merits of the same should be made.

WHEREFORE, the motions for reconsideration are GRANTED. The Decision dated December 8, 2015 of the Court,
which affirmed with modification the Decision dated May 17, 2013 and the Resolution dated September 20, 2013 of
the Court of Appeals in CA-G.R. SP No. 00013, is hereby SET ASIDE for the reasons above-explained. A new one
is ENTERED DISMISSING the Petition for Writ of Continuing Mandamus and Writ of Kalikasan with Prayer for the
Issuance of a Temporary Environmental Protection Order (TEPO) filed by respondents Greenpeace Southeast Asia
(Philippines), Magsasaka at Siyentipiko sa Pagpapaunlad ng Agrikultura, and others on the ground of mootness.

SO ORDERED.

Ms. Shehla Zia v. WAPDA, PLD 1994 SC 693

This public interest litigation came before the Supreme Court of Pakistan when petitioners challenged the
construction of a nearby electricity grid station due to potential health risks and hazards. The case addresses a
range of issues including, environmental protection, and an expansive interpretation of the right to life.
Date of the Ruling:

Feb 12 1994

Forum:

Supreme Court of Pakistan

Type of Forum:

Domestic

Summary:

A coalition of residents sent a letter of petition to the Supreme Court to challenge the Water and Power
Development Authority's (WAPDA) construction of an electricity grid station in their neighborhood, on designated
"green belt" property. The Court heard the matter as a human rights case, as Article 184 (3) of the Pakistan
Constitution provides original jurisdiction to the Supreme Court to take up and determine any matter concerning the
enforcement of fundamental rights of public importance. The Court considered the case to be maintainable under
Article 184 (3) since the danger and encroachment alleged were such as to violate the constitutional right to life
when interpreted expansively.
The residents argued that the high-voltage grid station would pose a health risk and potential hazard to local
residents. Ultimately, the court determined the scientific evidence inconclusive, while observing the general trend
supports that electromagnetic fields have negative effects on human health. The Court accepted the petitioners
argument that it should adopt the precautionary principle set out in the 1992 Rio Declaration on the Environment
and Development, the first international instrument that linked environment protection with human rights, whereby
the lack of full scientific certainty should not be used as a reason to prevent environmental degradation. Thus, it was
held that the right to a healthy environment was part of the fundamental right to life and right to dignity, under Article
9 and 14 of the Pakistan Constitution, respectively. The Court ruled that the word "life" covers all facets of human
existence, all such amenities and facilities that a person is entitled to enjoy with dignity, legally and constitutionally.
However, in an effort to strike a balance between the rights of citizens and the plans that are executed by the
authorities for the welfare, economic progress and prosperity of the country, the Court did not make a definitive
ruling on the pending construction of the grid station, but, with the consent of both parties, ordered a review and
report of grid project by the National Engineering Services of Pakistan (NESPAK) to suggest alterations and location
alternatives. The decision further directed the government of Pakistan to establish a commission of internationally
known and recognized scientists to review and rule on future grid station projects. In addition, the Court ordered
WAPDA to immediately introduce public consultation and objection procedures for all projects concerning grid
stations and power lines.
Enforcement of the Decision and Outcomes:

Following the decision, NESPAK, as directed, conducted an assessment of the grid project and submitted that
sufficient mitigation measures were in place to render any potential adverse impacts negligible. Based on this, the
grid station was permitted to be built. (Interview by email, with Ahmad Rafay Alam, a leading environmental lawyer
and activist in Pakistan, August 28th, 2015). A supplemental, if not consequential, outcome of this case(link is
external) was the passage of the Pakistan Environmental Protection Act (PEPA) 1997. The enactment of PEPA
1997 was followed(link is external) by several environmental policies and initiatives.
Groups involved in the case:

International Union for Conservation of Nature (IUCN), National Engineering Services of Pakistan (NESPAK)
Significance of the Case:

This landmark case expanded the fundamental rights to life and dignity by interpreting these rights to encompass
the right to a healthy environment. This decision is particularly significant as there are no specific provisions(link is
external) in the Pakistani Constitution regarding environmental protection. In relation to environmental law in
Pakistan, it is important that the case established the application of the precautionary principle where there is a
threat to environmental rights, and emphasized the positive obligations of the State in protecting the right to a clean
and healthy environment. (Interview by email, with Ahmad Rafay Alam, a leading environmental lawyer and activist
in Pakistan, August 28th, 2015). Furthermore, the ruling placed a notice and comment restriction on government
agencies in regards to projects that could potentially pose a public risk. This case is also noteworthy, because it laid
down the foundations(link is external) of all future public interest litigation brought before courts for environmental
protection. To cite just one example, following this case, the Supreme Court, citing the Zia decision, found in
the Salt Miners Case(link is external) (decided on 12th July, 1994) that the right to have water free from pollution
and contamination is a right to life itself.
Finally, a vital contribution(link is external) of this case which was accepted for consideration by the Court under
Article 184 (3), has been setting a precedent which allows for much easier access to the public to approach the
superior courts and the subordinate courts on environment related issues.

At last Supreme Court extends writ Jurisdiction through which voluntary societies, representative
organisations, trade unions and constitutional activists and individuals having no personal interest in
the cause would be able to test the validity of a law or an action of a public official affecting the
general public by making the power of judicial review of the Supreme Court on their own standing. In
judgement Dr. Mohiuddin Farooque Vs Bangladesh (Civil Appeal No. 24 of 1995), the Appellate
Division of the Supreme Court of Bangladesh takes a farm stand on the modern liberal trend of Public
Interest Litigation leaving aside the traditional view of locus standi[1]. It (the Supreme Court) decides
to interpret the term a person aggrieved in a liberal mood and with a progressive attitude and thus
widens the writ Jurisdiction of the High Court conferred on it by Article 102 of the Constitution of the
Peoples Republic of Bangladesh. The leading judgment was delivered by Mr. Justice Mustafa Kamal
with whom concurred the Chief Justice Mr. Justice ATM Afjal and Mr. Justice Mohammad Abdur
Rouf, Mr. Justice Latifur Rahman and Mr. Justice Binalendu Bikash Roy Chowdhury delivered
separate judgments fully agreeing with Mr. Mostafa Kamal. The judgment was delivered on July 25,
1996 but the full text of it was made public a few days ago. Following is the abridged version of the
judgment of Mr. Justice Mustafa Kamal.
The leading judgment was delivered by Mr. Justice Mustafa Kamal with whom concurred the Chief
Justice Mr. Justice ATM Afjal and Mr. Justice Mohammad Abdur Rouf, Mr. Justice Latifur Rahman
and Mr. Justice Bimalendu Bikash Roy Chowdhury delivered separate judgments fully agreeing with
Mr. Mostafa Kamal. The judgment was delivered on July 25, 1996 but the full text of it was made
public a few days ago. Following is the abridged version of the judgment of Mr. Justice Mustofa
Kamal.
The Burning issue of locus standi which has become a focal point of attention for South Asian
Superior Courts in the dying decades of the twentieth century in preparation for the twenty-first is the
only question that has been raised and is to be resolved in this appeal by leave by the petitioner-
appellant whose Writ Petition No. 998 of 1994 was summarily rejected by a Division Bench of the
High Court Division by its judgment and order dated 18-8-1994 on the ground that the appellant is not
any person aggrieved within the meaning of Article 102 of the Constitution, basing its reasonings
upon a decision of this Court in the case of Bangladesh Sangbadpatra Parishad, represented by its
Secretary General vs Government of the Peoples Republic of Bangladesh, 43DLR (AD) 126,
hereinafter referred to as Sangbadpatra Parishad Case.
Dr. Mohiuddin Farooque, Secretary General, Bangladesh Environmental Lawyers Association, shortly
BELA filed the writ petition both under Article 102 (1) and Article 102(2)(a) of the Constitution praying
for issuance of a Rule Nisi upon the respondents to show cause as to why all the activities and
implementation of FAP-20 undertaken in the District of Tangail should not be declared to have been
taken without lawful authority and to be of no legal effect.
The cause which the appellant espoused in the writ petition is the apprehended environmental ill-
effect of a Flood Control Plan affecting the life, property, livelihood, vocation and environmental
security of more than a million people in the district of Tangail.
As to the locus standi of the petitioner-appellant it was stated that the appellant is the Secretary-
General of Bangladesh Environmental Lawyers Association, shortly BELA, an Association registered
under the Societies Registration Act, 1860. He has been authorised by a resolution of the Executive
Committee of BELA dated 16-6-1994 to represent the Association and move the High Court Division
under Article 102 of the Constitution and to do all other acts and things in connection therewith. BELA
has been active since 1991 as one of the leading organisations in the field of environment, ecology
and relevant matters of public interest. It has studied policies, surveyed and examined legal quasi-
legal issues; institutional aspects and traditional issues on environment and ecology and actively
participated in many government, non-government and independent national and
regional/international activities and has gained widespread recognition both at home and abroad.
BELA being an Association of Lawyers has been raising the legality of the FAP activities on all
available occasions, specially as an invited panel speaker in the Second Conference on the Flood
Action Plan held at Dhaka in March, 1992. BELAs questioning of t also received written complaints
from a number of aggrieved people from Tangail District seeking legal assistance and other supports
after having been frustrated in pursuing their own remedies with the FAP-20 authorities, human rights
organisations etc. The media has also repeatedly published the adverse environmental and
ecological impact of FAP-20. As an environmentally concerned and active organisation BELA
responded to the complaints of the local people and conducted investigations at various times in
1992-93 in the FAP-20 areas. During the local inspection it was found that a significant number of
people of the project area was against the project.
They alleged that they had no participation in the project and that they were not willing to be the
subject of an experiment risking their lives and livelihood. The petitioner-appellant annexed copies of
evidence of local complaints as Annexure- F series.
Dr. Mohiuddin Farooque, learned Advocate appearing with the leave of the Court, has himself argued
the appeal on behalf of the petitioner-appellant. He submits that the words any person aggrieved
occurring in Article 102 of the Constitution have to be read in the context of the entire Constitution,
not isolated. Article 102 is an institutional vehicle for ventilating the rights and duties under the
Constitution and not a mere procedural device, Article 38 of the Constitution confers on every citizen
the right to form association and BELA has been registered as an association under the Societies
Registration Act, 1860 with the aims and objects inter alia to organise legal measures to protect
environmentally sensitive and fragile ecosystems. BELA devoted its time, energy and resources in
studying the FAP project ever since its inception, meeting local people, listening to their grievances
and carrying a lot of research on their behalf to find out the legal and constitutional infraction that
FAP-20 has committed. In view of its dedicated commitment to prevent environmental degradation it
has acquired a standing in its own right to represent the legal issues involved in the project in the writ
jurisdiction. It can claim a legal relationship with the Court in pursuance of its declared aims and
objects as the right to form an association also embraces the right to pursue the associations lawful
objects as well. Dr. Farooque then referred to Article 21(1) of the Constitution viz. 21 (1) It is the duty
of every citizen to observe the Constitution and the laws, to maintain discipline to perform public
duties and to protect public property.
He submits that if one has to require to do a thing, that is standing. He has to have an opportunity to
do so. An association of lawyers dedicated to the protection of a healthy environment has a concern
when it perceives and studies an environmental hazard which calls for prevention or rectification. As a
concerned group it is very much a person aggrieved and it must have an opportunity to put its
concern at rest by approaching the Court for redress.
The denial of locus standi to such a group will be not only an unconstitutional bar to the performance
of public duty but also a judicial condemnation of the associations dedicated efforts to perform its
public duty. Besides, the Preamble of the Constitution, which is a pledge taken by the people of
Bangladesh, declares that it shall be a fundamental aim of the State to realise a society in which
amongst others the rule of law, fundamental human rights and freedom, equality and justice, political,
economic and social, will be secured for all citizens. Dr. Farooque quotes from the Bar Council Rules
of Professional Etiquette for Lawyers and submits that the lawyers in general and the present
association of lawyers in particular are committed to realise the rule of law in the country through Law
Courts. The Preamble gives the association a standing. The Preamble and Article 8 also proclaim
the principles of absolute trust and faith in the Almighty Allah as a fundamental principle of the
Constitution and as a Fundamental Principle of State Policy. Absolute trust and faith in the Almighty
Allah necessarily mean the duty to protect His creation and environment. The appellant is aggrieved,
because Allahs creations and environment are in mortal danger of extinction and degradation. He
then refers to Article 102 (4) of the Constitution which provides that the High Court Division will not
grant an interim order until it is satisfied, upon hearing the Attorney General, that the interim order is
not likely to have the effect of being otherwise harmful to the public interest. Under Article 106 of the
Constitution, the President may refer a question of public importance for the opinion of the Appellate
Division. If the President, the Appellate Division, the High Court Division and the Attorney General
can refer, assist, consider and decide issues of public interest and public importance, then there is
no reason why conversely an association of lawyers cannot feel aggrieved on an issue of public
interest and why they cannot agitate the same before the Court. The Constitution cannot be so
interpreted as to bestow the concern of public interest and public importance upon only the
executive and judicial organs of the State. He further submits that the words any person in Article
102 should be read distinctively from the word aggrieved. If so read the appellant is any person,
because in Law Lexicon, any means all each, every, some amongst many. The Constitution uses
the words any person aggrieved both in Articles 102(1) and 102(2)(a), but the Bangla version of
Article 102(1) is . Whereas the Bangla version of Article 102(2)(a) is .. Under the
proviso to Article 153(3), the Bangla version will prevail over the English version and the omission of
the word . in Article 102(1) is not without significance. It means in effect that those whose
fundamental rights are being violated need not themselves invoke the jurisdiction under Article
102(1). Provided the persons aggrieved do not object, others espousing their cause can also invoke
the jurisdiction under Article 102(1). The appellant is espousing the cause of violation of Fundamental
Rights of a large segment of the population in respect of their right to life, property and vocation. Dr.
Farooque also submits that the beneficiaries of this writ petition are not the members of BELA but the
people including the generation yet to be born for whom the present generation holds the
environment as an inter generational trust. BELA therefore represents not only the present generation
but also the generation yet unborn. Every generation has a responsibility to the next to preserve that
rhythm and harmony that their inherited environment bequeathed to them. BELAs performance of
their obligation is therefore for ensurance of the protection of that right for the generation to come.
In reply Mr. A W Bhuiyan learned Additional Attorney General appearing on behalf of Government
respondent Nos. 1, 5 and 6 dourly maintains his submission that the appellant is not a person
aggrieved. His submission echoes the traditional view of locus standi which found the first classical
exposition in the hands of James. L.J in Ex parte Side-botham (1880)14Ch. D 458 defining person
aggrieved as one who has suffered a legal grievance, a man against whom a decision has been
pronounced which has wrongly deprived him of something or wrongly refused him something or
wrongly affected his title to something, a definition which was approved by Lord Esher, MR in Re
Reed Bowen and Co (1887) 19QBD174, and repeated in numerous cases thereafter including the
case of Durayappah vs. Fernando. (1967) 2AC337. He found in our own case of Md. Giasuddin
Bhuiyan vs Bangladesh, 1 (1981) BCR (AD)81 a proper reflection of the traditional view and he relies
upon the previously cited Sangbadpatra Parishad Case as well as upon the case of RV Secretary of
State for the Environment, ex parte Rose Theatre Trust Co (QBD) [1990] 1A11ER754 and Muntizma
Committee vs. Director Katchi Ahadies, Sindh, PLD1992 (Karachi) 54. BELA as a registered
Association, he submits, has the right to pursure its aims and objects through seminars, discussions
etc., but it cannot maintain a writ petition unless its own interests are affected. The writ petition does
not disclose that the appellant as an association has suffered any injury by FAP-20 activities. The
words any person aggrieved, if interpreted in the manner urged by the appellant, will be nothing
short of legislation and an impermissible re-writing of the Constitution by the Court, he submits.
Mr. Tofailur Rahman, learned Advocate appearing for respondent Nos. 2-4 adopts the arguments of
the learned Additional Attorney General and submits additionally that a liberalization of locus standi
will open the floodgates to litigation which is least desirable.
In Bangladesh an unnoticed but quiet revolution took place on the question of locus standi after the
introduction of the Constitution of the Peoples Republic of Bangladesh in 1973 in the case of Kazi
Mukhlesur Rahman vs Bangladesh, 26DLR(SC)44, decided on September 3, 1974 and hereinafter
referred to as Kazi Mukhlesur Rahmans Case. The appellant challenged the Delhi Treaty signed on
the 16th May, 1974 by the Prime Ministers of the government of Bangladesh and the Republic of
India providing therein inter alia that India will retain the southern half of south Berubari Union No. 12
and the adjacent enclaves and in exchange Bangladesh will retain the Dahagram and Angarpota
enclaves. The ground of challenge was that the agreement involved cession of Bangladesh territory
and was entered into without lawful authority by the executive head of government. The High Court
Division summarily dismissed the writ petition holding that the appellant had no locus standi. At the
hearing of the certificated appeal before the Appellate Division it was urged by the appellant that
since the remedies available under Article 102(2) of our Constitution are discretionary, the words any
person aggrieved should be construed liberally and given a wide meaning, although in the facts and
circumstances of a particular case the Court may regard the personal interest pleaded by a petitioner
as being slight or too remote.
This Court, therefore, settled seven general principles in Kazi Mukhlesur Rahmans case Viz. (1) the
High Court Division close not suffer from any lack of jurisdiction under Article 102 to hear a person.
(2) The High Court Division will grant locus standi to a person who agitates a question affecting a
constitutional issue of grave impotence, posing a threat to his fundamental rights which pervade and
extend to the entire territory of Bangladesh. (3) If a fundamental right is involved, the impugned
matter need not affect a purely personal right of the applicant touching him alone. It is enough if he
shares that right in common with others. (4) In interpreting the words any person aggrieved,
consideration of Fundamental Rights in Part III of the Constitution is a relevant one. (5) It is the
competency of the person to claim a hearing which is at the heart of the interpretation of the words
any person aggrieved. (6) It is a question of exercise of discretion by the High Court Division as to
whether it will treat that person as a person aggrieved or not. (7) The High Court Division will exercise
that jurisdiction upon due consideration of the facts and circumstances of each case.
The Sangbadpatra Parishad Case was no authority for the proposition that an environmental lawyers
association is not a person aggrieved when it espouses the causes of a large number of people on
an environmental issue. The High Court Divisions reliance on this decision was misplaced, to say the
least, because the ratio decidendi of the said case was that an association of newspaper owners and
news organisations, espousing not the causes of the downtrodden and the poor who have no access
to justice, but the cause of its members who are opulent enough to seek redress on their own, can
not in a representative capacity be a person aggrieved, when the associations own interests are not
in issue. That case was not an authority even for the proposition that an association can never be a
person aggrieved if it espouses the causes of its members in a representative capacity. The
Sangbandptra Parishad Case as decided on the facts of that case and that is how it should be read.
We now proceed to say how we interpret Article 102 as a whole. We do not give much importance to
the dictionary meaning or punctuation of the words any person aggrieved Article 102 of our
Constitution is not an isolated island standing above or beyond the sea-level of the other provisions of
the Constitution. It is a part of the over-all scheme, objectives and purposes of the Constitution. And
its interpretation is inextricably linked with the (i) emergence of Bangladesh and framing of its
Constitution, (ii) the Preamble and Article 7, (iii) Fundamental Principles of State Policy (iv)
Fundamental Rights and (v) the other provisions of the Constitution.
As to (i) above, it is wrong to view our Constitution as just a replica with local adaptations of a
Constitution of the Westminister model among the Commonwealth countries of Anglo-Sazon legal
tradition. This Constitution of ours is not the outcome to a negotiated settlement with a former colonial
power. It was not drawn upon the consent, concurrence of approval of any external sovereign power.
Nor is it the last of an oft-replaced and of substituted Constitution after several Constitutions were
tried and failed, although as many as 13 amendments have so far been made to it. It is the fruit of a
historic war of independence, achieved with the lives and sacrifice of a telling number of people for a
common cause making it a class part from other Constitutions of comparable description. It is a
Constitution in which the people feature as the dominant actor. It was the people of Bangladesh who
in exercise of their own self-proclaimed native power made a clean break from the past unshackling
the bondage of a past statehood and adopted a Constitution of its own choosing. The Constitution
historically and in real terms is a manifestation of what is called the Peoples Power, The people of
Bangladesh, therefore, are central, as opposed to ornamental to the framing of the Constitution.
As for (ii) the Preamble and Article 7, the Preamble of our Constitution stands on a different footing
from that of other Constitutions by the very fact of the essence of its birth which is different from
others. It is in our Constitution a real and positive declaration of pledges, adopted, enacted and given
to themselves by the people not by way of a presentation from skilful draftsmen, but as reflecting the
ethos of their historic war of independence. Among other pledges the high ideals of absolute trust and
faith in the Almightily Allah, a pledge to secure for all citizens a society in which the rule of law,
fundamental human rights and the affirmation of the sacred duty to safeguard, protect and defend the
Constitution and to maintain its supremacy as the embodiment of the will of the people of Bangladesh
are salutary in indicating the course or path that the people wish to tread in the days to come. Article
7 of the Constitution bestows the powers of the Republic with the people shall be effected only under
and by the authority of, the Constitution. Article 7 does not contain empty phrases. It means that all
the legislative, executive and judicial powers conferred on the Parliament, the Executive and the
Judiciary respectively are constitutionally the powers of the people themselves and the various
functionaries and institutions created by the Constitution exercise not their own indigenous and native
powers but the powers of the people on terms expressed by the Constitution. The people, again, are
the repository of all power under Article 7.
As for Part II of the Constitution, containing Fundamental Principles of State Policy. Article 8(2)
provides that the principles set out in this Part shall be a guide to the interpretation of the
Constitution and of the other laws of Bangladesh. It is constitutionally impermissible to leave out of
consideration Part II of our Constitution when an interpretation of Article 102 needs a guidance.
As for (iv), Part III of the Constitution bestows Fundamental Rights on the citizens and other residents
of Bangladesh. Article 44(1) guarantees the right to move the High Court Division in accordance with
Article 102(1) for the enforcement of these rights. Article 102(1) is therefore a mechanism for the
enforcement of Fundamental Rights which can be enjoyed by an individual alone in so far as his
individual in common with others when the rights pervade and extend to the entire population and
territory. Article 102(1) especially cannot be divorced from Part III of the Constitution.
As for (v) the other provisions of the Constitution which will vary from case to case may also come to
play a role in interpreting Article 102 of the Constitution.
Article 102 therefore is an instrumentality and a mechanism, containing both substantives and
procedural provisions, by means of which the people as a collective personality, and not merely as a
conglomerate or individuals, have devised for themselves a method and manner to realize the
objectives, purposes, policies, rights and duties which they have set out for themselves and which
they have strewn over the fabric of the Constitution.
With the power of the people looming large behind the constitutional horizon it is difficult to conceive
of article 102 as a vehicle or mechanism for realizing exclusively individual rights upon individual
complaints. The Supreme Court being a vehicle, a medium or mechanism devised by the
Constitution for the exercise of the judicial power of the people on behalf of the people, the people will
always remain the focal point of concern of the Supreme Court while disposing of justice or
propounding any judicial theory or interpreting any provision of the Constitution. Considering this
context interpreting the words any person aggrieved meaning only and exclusively individuals and
excluding the consideration of people as a collective and consolidated personality will be island taken
against the Constitution. There is no question of enlarging locus standi or legislation by court.
It is therefore, the cause that the citizen applicant or the indigenous and native association espouses
which will determined whether the applicant has the competency to claim a hearing or not. If he
espouses a purely individual cause, he is a person aggrieved if he is own interest are affected. If he
espouses a public cause involving public wrong or public injury, he need not be personally affected.
The public wrong or injury is very much a primary concern of the Supreme Court which in the scheme
of our Constitution is a constitutional vehicle for exercising the judicial power of the people.
The High Court Division will exercise some rules of caution in each case. It will see that the applicant
is in fact espousing a public cause, that his interest in the subject matter is real and not in the interest
of generating some publicity for himself or to create mere public sensation, that he is acting bona fide,
that he is not a busybody or an interloper, that it is in the public interest to grant him standing and that
he is not acting for a collateral purpose to achieve a dubious goal, including serving a foreign interest.
As to the apprehension of floodgate, the people have no doubt a flood and the Constitution is the
sluice-gate through which the people control its own entry. Our Courts will be prudent enough to
recognize the people when the people appear through an applicant as also those who masquerade,
under the name of the people. Taking up the peoples causes at the expense of his own is a rare
phenomenon, not a common place occurrence.
We hold therefore that the association appellant was wrongly held by the High Court Division not to
be a person aggrieved in the facts and circumstances of the case and we hold further that the
appellant is any person aggrieved within the meaning of both Article 102 (10) and Article 102(2)(a)
of the Constitution.

[1] Locus standi means the right to bring an action, to be heard in court, or to address the Court on a
matter before it
Supreme Court of India

M. C. Mehta vs Kamal Nath & Ors on 15 March, 2002

Author: Raju

Bench: M.B. Shah, Doraiswamy Raju

CASE NO.:

Writ Petition (civil) 182 of 1996

PETITIONER:

M. C. MEHTA

Vs.

RESPONDENT:

KAMAL NATH & ORS.

DATE OF JUDGMENT: 15/03/2002

BENCH:

M.B. Shah & Doraiswamy Raju

JUDGMENT:

RAJU, J.
The above matter has been set down for hearing before us pursuant to the orders passed by this Court (Justice S.Saghir
Ahmad and Justice Doraiswamy Raju) on May 12, 2000 and the consequent Notice issued to the Executive Director, M/s
Span Motels Pvt. Ltd. at Manali, and the Executive Director, Span Motels Pvt. Ltd., Operations Headquarters at New
Delhi, calling upon them to show cause as to why in addition to damages, exemplary damages be not awarded for
having committed the various acts set out and enumerated in detail in the main judgment reported in M.C. Mehta vs.
Kamal Nath & Others [(1997)1 SCC 388] wherein it was held as hereunder:

"39. We, therefore, order and direct as under:

1. The public trust doctrine, as discussed by us in this judgment is a part of the law of the land.

2. The prior approval granted by the Government of India, Ministry of Environment and Forest by the letter dated
24.11.1993 and the lease deed dated 11.4.1994 in favour of the Motel are quashed. The lease granted to the Motel by
the said lease deed in respect of 27 bighas and 12 biswas of area, is cancelled and set aside. The Himachal Pradesh
Government shall take over the area and restore it to its original-natural conditions.

3. The Motel shall pay compensation by way of cost for the restitution of the environment and ecology of the area. The
pollution caused by various constructions made by the Motel in the riverbed and the banks of River Beas has to be
removed and reversed. We direct NEERI through its Director to inspect the area, if necessary, and give an assessment of
the cost which is likely to be incurred for reversing the damage caused by the Motel to the environment and ecology of
the area. NEERI may take into consideration the report by the Board in this respect.

4. The Motel through its management shall show cause why pollution fine in addition be not imposed on the Motel.

5. The Motel shall construct a boundary wall at a distance of not more than 4 metres from the cluster of rooms (main
building of the Motel) towards the river basin. The boundary wall shall be on the area of the Motel, which is covered
by the lease dated 29.9.1981. The Motel shall not encroach/cover/utilize any part of the river basin. The boundary wall
shall separate the Motel building from the river basin. The river bank and the river basin shall be left open for the public
use.

6. The Motel shall not discharge untreated effluents into the river. We direct the Himachal Pradesh Pollution
Control Board to inspect the pollution control devices/treatment plants set up by the Motel. If the effluent/waste
discharged by the Motel is not conforming to the prescribed standards, action in accordance with law be taken against
the Motel.
7. The Himachal Pradesh Pollution Control Board shall not permit the discharge of untreated effluent into River Beas.
The Board shall inspect all the hotels/institutions/factories in Kullu-Manali area and in case any of them are discharging
untreated effluent/waste into the river, the Board shall take action in accordance with law.

8. The Motel shall show cause on 18.12.1996 why pollution fine and damages be not imposed as directed by us. NEERI
shall send its report by 17.12.1996. To be listed on 18.12.1996."

On being served with a Notice dated 14.12.1996, the matter was heard on 19.12.1996, when this Court (Justice Kuldip
Singh and Justice S. Saghir Ahmed) passed the following order:

"Pursuant to the above quoted direction NEERI has filed its report. A copy of the report was given to the learned counsel
for the Motel yesterday. Show cause notice to the Motel has been given on 2 counts (i) why the Motel be not asked
to pay compensation to reverse the degraded environment and (ii) why pollution fine, in addition, be not imposed. Mr.
H.N. Salve, learned counsel appearing for the Motel states that he intends to file counter to the report filed by the
NEERI. He has asked for short adjournment. We are of the view that prayer for adjournment is justified.

We, however, make it clear that this Court in the judgment dated December 13, 1996 has found as a fact that the Motel
by constructing walls and bunds on the river Banks and in the river Bed, as detailed in the judgment, has interfered with
the flow of the river. The said finding is final and no argument can be permitted to be addressed in that respect. The
only question before this Court is the determination of quantum of compensation and further whether the fine in
addition be imposed, if so, the quantum of fine."

[Emphasis supplied] When the matter came up for hearing on 4.8.98, the State of Himachal Pradesh was directed to
examine the Report submitted by NEERI and also submit its own Plan of Action, too. Since, it was felt that the various
owners of properties along the river banks would be benefited by the plan that is prepared, they should also be heard
before any action is taken on the basis of such plan. The suggested plan and list of owners of properties were directed to
be filed and thereupon Notices were also issued to them, in due course. On 16.3.99, Notice was issued to the Ministry of
Environment, Government of India, to indicate their response to the Action Plan submitted by the Government of
Himachal Pradesh on 21.12.98, wherein it was also stated that they are not possessed of sufficient financial means to
implement their own action plan unless the Government of India provides them necessary finances. On 3.8.99, it
was ordered that the larger issue regarding Action Plan will be considered later and the matter will be taken to decide
the question relating to pollution fine, if any, to be imposed on the 1st respondent. On 28.9.99, the statement of
Mr. Salve, learned counsel on behalf of the respondent, that M/s Span Motels (P) Ltd. was prepared to bear their fair
share of the project cost of ecological restoration was recorded, and directed the same to be submitted in writing. On
19.01.2000, it was also ordered that the question of apportionment of cost of restoration of ecology as also the question
of pollution fine will be considered by the Court on the next date of hearing. At the hearing on 29.2.2000, Shri G.L.
Sanghi, Senior Advocate, appearing for M/s Span Motels (P) Ltd., challenged the legality of the proposed levy of fine,
otherwise than through the manner envisaged under the relevant pollution laws by resorting to prosecution before
criminal court and after a fair trial therefor. Mr. M.C. Mehta, apart from making submissions, was permitted to submit a
note in response to the submissions of Shri G.L. Sanghi.
On a consideration of the respective stand on behalf of the parties on either side, by a judgment dated 12.5.2000,
reported in 2000 (6) SCC 213, after adverting to the various laws relating to the prevention and control of pollution and
for protection of environment, it was held as follows:

"Thus, in addition to the damages which have to be paid by M/s Span Motel, as directed in the main judgment, it cannot
be punished with fine unless the entire procedure prescribed under the Act is followed and M/s Span Motel are tried for
any of the offences contemplated by the Act and is found guilty.

The notice issued to M/s Span Motel why pollution fine be not imposed upon them is, therefore, withdrawn. But the
matter does not end here.

Pollution is a civil wrong. By its very nature, it is a Tort committed against the community as a whole. A person,
therefore, who is guilty of causing pollution has to pay damages (compensation) for restoration of the environment and
ecology. He has also to pay damages to those who have suffered loss on account of the act of the offender. The powers
of this Court under Article 32 are not restricted and it can award damages in a PIL or a Writ Petition as has been held in a
series of decisions. In addition to damages aforesaid, the person guilty of causing pollution can also be held liable to pay
exemplary damages so that it may act as a deterrent for others not to cause pollution in any manner. Unfortunately,
notice for exemplary damages was not issued to M/s Span Motel although it ought to have been issued. The
considerations for which "fine" can be imposed upon a person guilty of committing an offence are different from those
on the basis of which exemplary damages can be awarded. While withdrawing the notice for payment of pollution fine,
we direct a fresh notice be issued to M/s Span Motel to show cause why in addition to damages, exemplary damages be
not awarded for having committed the acts set out and detailed in the main judgment. This notice shall be returnable
within six weeks. This question shall be heard at the time of quantification of damages under the main judgment."

Shri G.L. Sanghi, learned Senior counsel and Shri Rajiv Dutta, Senior counsel, were heard for M/s Span Motels Pvt. Ltd.
Mr. M.C. Mehta, Shri Vijay Panjwani for Central Pollution Control Board, Shri N.C. Kochhar for State of Himachal
Pradesh, and others were heard. Both Shri G.L. Sanghi and Shri N.C. Kochhar, took us in great detail to the relevant
portions of the pleadings, the various orders passed on different occasions and the reports submitted by the Central
Pollution Control Board as well as by NEERI and the action plan submitted by the State of Himachal Pradesh. The counsel
for Central Pollution Control Board also explained the tenor of the report submitted by it apart from inviting attention to
Section 24 of the Water (Prevention & Control of Pollution) Act, 1974.

We have carefully considered the submissions made by them in the light of the materials on record. The sum and
substance of the stand taken for M/s Span Motels (P) Ltd., is that the action taken and construction works executed by
them at heavy cost was meant to protect not only their own property but the property of the State and the same was
also in the interests of those on the basin and banks of both sides of the river Beas and a perusal of the remedial
measures suggested in the technical reports noticed above would go to show that they have only executed such nature
and type of works which now are suggested for execution in those reports as protective measures and, therefore, they
cannot be held guilty of having committed any illegalities and interfered with or endangering the environment or
ecology in the place to warrant the levy of exemplary damages against them. In pursuing such a stand the repeated
endeavor was to reiterate that M/s Span Motels (P) Ltd. could not be said to have committed any illegal acts, when they
really approached all the authorities concerned for effective action and even obtained necessary permissions for
executing those necessary protective measures and works, at a stage when the authorities who are obliged themselves
to undertake such works were feeling helpless for want of funds to undertake them. Finally, it was contended that they
have already spent considerable sum of their own money for the protective and relief measures undertaken by them
and it will be unjust and harsh to impose upon them any further liability in the shape of exemplary damages, when they
have already undertaken responsibility to bear a fair share of the project cost of ecological restoration. Shri G.L. Sanghi
also reiterated and reinforced the said undertaking by stating that his clients still stand by the same and there is no
justification whatsoever to levy any exemplary damages against them.

This Court, on the earlier occasions, after adverting to the pleadings, relevant documents and the technical report of the
Central Pollution Control Board, enumerated the various activities of the Span Motels considered to be illegal and
constituted "callous interference with the natural flow of river Beas" resulting in the degradation of the environment
and for that purpose indicted them with having "interfered with the natural flow of the river by trying to block the
natural relief/spill channel of the river". We do not want to burden this judgment once again by repeating them in
extenso. Equally, the Himachal Pradesh Government also was held to have committed patent breach of public trust by
leasing the ecologically fragile land to the Motel. It is only on such findings, the "polluter pays" principle as interpreted
by this Court with liability for harm to compensate not only the victims but also the cost of restoring the environmental
degradation and reversing the damaged ecology was held applicable to this case. Those findings rendered earlier were
held to be "final and no argument can be permitted to be addressed in that respect" and the only question that
remained left is the "determination of quantum of compensation and further whether the fine in addition be imposed, if
so, the quantum of fine". Therefore, not only it is impermissible for the counsel for the Motel or anyone else to claim for
a reversal of those findings or any reconsideration of the nature, character and legality or propriety of those activities of
SMPL but we feel bound by them and not persuaded to proceed on a clean slate, by-passing the exercise earlier
undertaken and the conclusions firmly recorded in this regard. After the submission of the technical report by NEERI
also, it was held that the "question of apportionment of cost of restoration of ecology as also the question of pollution
fine will be considered by the Court" on the next and further hearings. The NEERI report also does not appear to either
give a clean chit or completely exonerate the Span Motel Pvt. Ltd for their activities, which were earlier considered to
constitute an onslaught on the fragile environment and ecology of the area.

Even in the judgment of this Court, since reported in 2000(6) SCC 213 (supra) while accepting the claim of the Motels
that the sine qua non for punishment of imprisonment and fine is a fair trial in a competent Court and that such
punishment of imprisonment or fine can be imposed only after the person is found guilty by the competent court, a
general and passing reference has also been made to the earlier findings and as a consequence of which only it has been
again held that though no fine as such can be imposed and the notice issued by this Court earlier be withdrawn, a fresh
notice was directed to be issued to Span Motels Pvt. Ltd. as to why in addition to damages, as directed in the main
judgment, exemplary damages cannot be awarded against them "for having committed the acts set out and detailed in
the main judgment". Equally, the object and purpose of such levy of exemplary damages was also indicated as to serve
"a deterrent for others not to cause pollution in any manner". Having regard to what has been stated supra, the
question as to the imposition of exemplary damages and the liability of Span Motels Pvt. Ltd. in this regard has to
necessarily depend upon the earlier findings of this Court that the Motel by constructing walls and bunds on the river
banks and in the river bed as detailed in the judgment has interfered with the flow of the river and their liability to pay
the damages on the principle of "Polluter pays" and also as an inevitable consequence thereof. The specification in the
NEERI report regarding details of the activities of Span Motels Pvt. Ltd. and the nature of constructions made in 1993 in
figure No.2 that (a) "in 1993, to protect the newly acquired land as also the main resort land, the SMPL constructed
concrete studs, stepped wall and concrete bars as depicted in Fig.2"; (b) "blocked the mouth of the natural relief/spill
channel by dumping of boulders" resulting in the leveling of the leased area and (c) "at the downstream of M/s SMPL, a
private property owner has blocked the relief/spill channel by constructing a stonewall across the channel (E & F)" also
confirms and only reinforce the need and justification for the indictment already made. The basis for their liability to be
saddled with the exemplary costs has been firmly and irreversibly already laid down in the main judgment itself and
there is no escape for the Span Motels Pvt. Ltd. in this regard. We have to necessarily proceed further only on those
bases of facts and position of law, found and declared.

The question remaining for further consideration relating to the award of exemplary damages is only as to the quantum.
The various laws in force to prevent, control pollution and protect environment and ecology provide for different
categories of punishment in the nature of imposition of fine as well as or imprisonment or either of them, depending
upon the nature and extent of violation. The fine that may be imposed alone may extend even to one lakh of rupees.
Keeping in view all these and the very object underlying the imposition of imprisonment and fine under the
relevant laws to be not only punish the individual concerned but also to serve as a deterrent to others to desist from
indulging in such wrongs which we consider to be almost similar to the purpose and aim of awarding exemplary
damages, it would be both in public interest as well as in the interests of justice to fix the quantum of exemplary
damages payable by Span Motels Pvt. Ltd. at Rupees Ten lakhs only. This amount we are fixing keeping in view the
undertaking given by them to bear a fair share of the project cost of ecological restoration which would be quite
separate and apart from their liability for the exemplary damages. The question relating to the said quantum of
liability for damages on the principle of "polluter pays", as held by this Court against the Span Motels Pvt. Ltd. and
undertaken by them, will be determined separately and left open for the time being. The amount, of special
damages of Ten lakhs of rupees, shall be remitted to the State Government in the Department of Irrigation and Public
Health to the Commissioner/Secretary for being utilized only for the flood protection works in the area of Beas river
affected by the action of Span Motels Pvt. Ltd.

J.

[ M.B. Shah ] J.

[ Doraiswamy Raju ] March 15, 2002.