Gloria Estenzo Ramos,MPA, LlB

Gloria Estenzo Ramos,MPA, LlB Oceana Philippines International * ... Dr. Kent Carpenter describes as ‘the center of the center of marine biodiversity ...

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Participation Principle Indicators under Environmental Law: Towards Establishing International Collaboration in Pursuit of Environmental Justice March 9-10, 2015 Osaka University

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Gloria Estenzo Ramos,MPA, LlB Oceana Philippines International

* Introduction – Political and Ecological Profile of the Philippines

* I. State of Environment * II. Legal Framework and Challenges in

Protecting Access Rights and Promoting Green Justice

* III.

Conclusion

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Profile: PHILIPPINES • Government

• People and Environment

• Presidential form

• Population: 100 Million and still growing

• Three co-equal and separate departments • Poverty level – over 30%

• Decentralized form of • 7,100 islands government, but not federal • Christianity is the main religion • Local autonomy and devolved powers and • Natural laboratory for functions of local disasters government units • Patronage politics and • Rule of Law – 1987 political dynasties are still Constitution prevalent

• Strong Spanish and American influence because of colonial rule

Center of the center…

Scientists have described the Philippines as the center of the center of marine shore fish diversity with the “richest concentration of marine life on the entire planet.” (Carpenter and Springer, 2005)

14th major fishing country Peru Senegal

China

Brazil

New Zealand Thailand Namibia South Korea Turkey

European Union

South Africa Argentina Mexico Canada Morocco (no W.Sahara)

United States

Philippines Vietnam Russia

Malaysia Iceland Norway

Indonesia Japan Chile

Source: FAO Catch Data 2000-2006 Average

India

Our seas, our life…Filipinos are fish-eating people

• IRONICALLY, THE POOREST OF THE POOR LIVE IN COASTAL COMMUNITIES. • THE HIGHEST CONCENTRATION OF MALNOURISHED CHILDREN IS FOUND IN FISHING VILLAGES. •

FISHERFOLK ARE BEING DISPLACED BY ILLEGAL FISHING IN ALREADY OVERFISHED MUNICIPAL WATERS AND UNPLANNED COASTAL DEVELOPMENTS, IN ADDITION TO THE CLIMATE CRISIS

Assassination of Sen. Aquino at the tarmac, Aug 21, 1983, Photo: AP President Cory Aquino Photo: Siete Suerte

* Social Contract with the People

President Benigno S. Aquino III

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Our country will continue to be what

Dr. Kent Carpenter describes as ‘the center of the center of marine

biodiversity adversity’ if citizens allow the almost nil implementation of laws, the pervasive state of ignorance of rights and responsibilities to protect Nature and

the people by public officials and citizens, the appalling apathy by those vested with the knowledge of law, science, economics and other fields, and the worsening anthropogenic impacts inflicted upon our home planet, and of course, the shameless avarice by those who worship money and the self above

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anything else.

Update on EU yellow card status

Rappler, February 17, 2015

*Legal Framework and * CONSTITUTION

Challenges in Promoting Green Justice in the Philippines

HUMAN RIGHTS to LIFE, HEALTH AND ENVIRONMENT RIGHT TO ACCESS INFORMATION RIGHT TO PARTICIPATE IN DECISION-MAKING PROCESS * NATIONAL LAWS * SPECIFIC STATUTES TO PROTECT AND CONSERVE THE ENVIRONMENT * ANTI-POLLUTION LAWS * INTERNATIONAL CONVENTIONS – DOCTINE OF INCORPORATION * SUPREME COURT RULINGS * OPOSA V. FACTORAN * PROV. OF RIZAL V. EXEC. SEC. * ALVAREZ V. PICOP * MMDA V. CONCERNED RESIDENTS OF MLA BAY * BORACAY FOUNDATION V PROVINCE OF AKLAN * SC RULES OF PROCEDURE FOR ENVIRONMENTAL CASES * LOCAL ORDINANCES * ADMINISTRATIVE REGULATIONS

CONSTITUTION HUMAN RIGHTS

NATIONAL LAWS Local Government Code ENVIRONMENTAL LAWS SUPREME COURT RULINGS Oposa v. INTERNATIONAL LAW PRINCIPLES

LOCAL ORDINANCE

ADMINISTRATIVE REGULATIONS

* * Art. II, Section 28. Subject

to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest

* Art III, Section 7. The right of

the people to information on matters of public concern shall be recognized. Access to official records, and to documents and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law.

Supreme Court Rulings affirming the right to access information Tañada v. Tuvera, G.R. No. 63915, April 24,1985 Legaspi v. Civil Service Commission, G.R. No. 72119, May 29, 1987 Valmonte v. Belmonte, G.R. No. 74930, February 13, 1989 Rationale: “An informed citizenry with access to the diverse currents in political, moral and artistic thought and data relative to them, and the free exchange of ideas and discussion of issues thereon, is vital to the democratic government envisioned under our Constitution.”

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JULY, 2009

2011

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* AVAIL OF REMEDIES UNDER R.A. 9485, ANTI-RED TAPE ACT LAW

Constitution, Article XIII: ROLE AND RIGHTS OF PEOPLE'S ORGANIZATIONS Section 16. The right of the people and their organizations to effective and reasonable participation at all levels of social, political, and economic decision-making shall not be abridged. The State shall, by law, facilitate the establishment of adequate consultation mechanisms.

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* Local Government Code – devolved environmental protection as a service to be delivered by local government units (LGUs)

* Public consultation is required for projects that

impact the environment or cause climate change

* Any permit or license is invalidated due to failure to comply with the requirement of public consultation - Supreme Court rulings (Cruz vs. Exec. Secretary, Boracay Foundation vs. Province of Aklan (June 26, 2012)

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* Under various environmental laws, multi-

sectoral bodies are constituted as policymaking bodies – Solid Waste Management Board under RA 9003(Ecological Solid Waste Management Law), Air Shed Board under RA 8749 (Clean Air Act), Protected Area Management Body under RA 7586, the National Integrated Protected Area System Act), Fisheries and Aquatic Resources Management Council under RA 8550, the Fisheries Code

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Promulgation Date: APRIL 13, 2010

* Filing fees waived or imposed as a judgment lien * Citizen suit * Precautionary principle, formally adopted * Anti-SLAPP provision * New remedies: writ of kalikasan, (temporary) environmental protection order, continuing mandamus * Trial by affidavit (in lieu of direct examination) subject to crossexamination

Promulgation Date: APRIL 13, 2010

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Citizen Suit (Rules of Procedure for Environmental Cases) • Section 4. Who may file. — Any real party in interest, including the government and juridical entities authorized by law, may file a civil action involving the enforcement or violation of any environmental law.

• Section 5. Citizen suit. — Any Filipino citizen in representation of others, including minors or generations yet unborn, may file an action to enforce rights or obligations under environmental laws. Upon the filing of a citizen suit, the court shall issue an order which shall contain a brief description of the cause of action and the reliefs prayed for, requiring all interested parties to manifest their interest to intervene in the case within fifteen (15) days from notice thereof. The plaintiff may publish the order once in a newspaper of a general circulation in the Philippines or furnish all affected barangays copies of said order. • Citizen suits filed under R.A. No. 8749 and R.A. No. 9003 shall be governed by their respective provisions.

Citizen Suit under the Rules

Indiscriminate dumping of coal ash in Toledo City Photo: Primo, Toledo City

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Section 41. Citizen Suits. - For purposes of enforcing the provisions of this Act or its implementing rules and regulations, any citizen may file an appropriate civil, criminal or administrative action in the proper courts against:

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(a) Any person who violates or fails to comply with the provisions of this Act or its implementing rules and regulations; or

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(b) The Department or other implementing agencies with respect to orders, rules and regulations issued inconsistent with this Act; and/or

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(c) Any public officer who willfully or grossly neglects the performance of an act specifically enjoined as a duty by this Act or its implementing rules and regulations; or abuses his authority in the performance of his duty; or, in any manner, improperly performs his duties under this Act or its implementing rules and regulations: Provided, however, That no suit can be filed until thirty-day (30) notice has been taken thereon.

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The court shall exempt such action from the payment of filing fees, except fees for actions not capable of pecuniary estimations, and shall likewise, upon prima facie showing of the non-enforcement or violation complained of, exempt the plaintiff from the filing of an injunction bond for the issuance of a preliminary injunction.

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Section 52. Citizens Suits - For the purposes of enforcing the provisions of this Act or its implementing rules and regulations, any citizen may file an appropriate civil, criminal or administrative action in the proper courts/bodies against:

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(a) Any person who violates or fails to comply with the provisions of this Act its implementing rules and regulations; or

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(b) The Department or other implementing agencies with respect to orders, rules and regulations issued inconsistent with this Act; and/or

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(c) Any public officer who willfully or grossly neglects the performance of an act specifically enjoined as a duty by this Act or its implementing rules and regulations; or abuses his authority in the performance of his duty; or, in any many improperly performs his duties under this Act or its implementing rules and regulations; Provided, however, That no suit can be filed until after thirty-day (30) notice has been given to the public officer and the alleged violator concerned and no appropriate action has been taken thereon.

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The Court shall exempt such action from the payment of filing fees and statements likewise, upon prima facie showing of the non-enforcement or violation complained of, exempt the plaintiff from the filing of an injunction bond for the issuance of preliminary injunction.

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In the event that the citizen should prevail, the Court shall award reasonable attorney's fees, moral damages and litigation costs as appropriate.

Within thirty (30) days, the court shall make a determination if the compliant herein is malicious and/or baseless and shall accordingly dismiss the action and award attorney's fees and damages.

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First case filed in Cebu for Environmental Protection Order (EPO)

* Environmental protection order (EPO) refers to an order issued by the court directing or enjoining any person or government agency to perform or desist from performing an act in order to protect, preserve or rehabilitate the environment.

* Akin to applying for Writ of Kalikasan, only that

it is filed in lower courts, not with the Supreme Court or the Court of Appeals

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Photo: Ricardo Rezende

* Inspired by two cases in India, the writ was

first issued in the case of Metro Manila Development Authority vs. Residents of Manila Bay (G.R. Nos. 171947-48, December 18, 2008)

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Sunset at Manila Bay

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RA 8749, the Clean Air Act *

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Section 43. Suits and Strategic Legal Actions Against Public Participation and the Enforcement of This Act. - Where a suit is brought against a person who filed an action as provided in Sec. 41 of this Act, or against any person, institution or government agency that implements this Act, it shall be the duty of the investigating prosecutor or the court, as the case may be, to immediately make a determination not exceeding thirty (30) days whether said legal action has been filed to harass, vex, exert undue pressure or stifle such legal recourses of the person complaining of or enforcing the provisions of this Act. Upon determination thereof, evidence warranting the same, the court shall dismiss the case and award attorney's fees and double damages. This provision shall also apply and benefit public officers who are sued for acts committed in their official capacity, their being no grave abuse of authority, and done in the course of enforcing this Act.

RA 9003, the ESWM Law *

Section 53. Suits and Strategic Legal Action Against Public Participation (SLAPP) and the Enforcement of this Act - Where a suit is brought against a person who filed an action as provided in Sec. 52 of this Act, or against any person, institution or government agency that implements this Act, it shall be the duty of the investigating prosecutor or the Court, as the case may be, to immediately make a determination not exceeding thirty (30) days whether said legal action has been filed to harass, vex, exert undue pressure or stifle such legal recourses of the person complaining of or enforcing the provisions of this Act. Upon determination thereof, evidence warranting the same, the Court shall dismiss the complaint and award the attorney's fees and double damages.

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This provision shall also apply and benefit public officers who are sued for acts committed in their official capacity, there being no grave abuse of authority, and done in the course of enforcing this Act.

*Strategic Lawsuit Against Public Participation

* Two laws provide for Citizen

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Section 53. Suits and Strategic Legal Action Against Public Participation (SLAPP) and the Enforcement of this Act Where a suit is brought against a person who filed an action as provided in Sec. 52 of this Act, or against any person, institution or government agency that implements this Act, it shall be the duty of the investigating prosecutor or the Court, as the case may be, to immediately make a determination not exceeding thirty (30) days whether said legal action has been filed to harass, vex, exert undue pressure or stifle such legal recourses of the person complaining of or enforcing the provisions of this Act. Upon determination thereof, evidence warranting the same, the Court shall dismiss the complaint and award the attorney's fees and double damages.

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This provision shall also apply and benefit public officers who are sued for acts committed in their official capacity, there being no grave abuse of authority, and done in the course of enforcing this Act.

Suit: RA 8749, the Clean Air Act and RA 9003, the ESWM Law

* The 2010 Rules of Procedure for Environmental Cases also provide for remedies against SLAPP.

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* Rules of Procedure for Environmental Cases

Interpose as SLAPP as Defense, in the Answer

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Court directs plaintiff to file opposition to prove that it is not SLAPP within five days from receipt of notice that Answer has been filed

Within 15 days from filing of comment or default, set defense of SLAPP for hearing

Resolved within 30 days from Summary Hearing

* Precautionary principle states that when

human activities may lead to threats of serious and irreversible damage to the environment that is scientifically plausible but uncertain, actions shall be taken to avoid or diminish that threat.

* Court applied Precautionary Principle as basis for extending the indefinite ban on coal ash dumping.

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CRITICAL POINTS TO CONSIDER • LAW IS SUPREME BUT MEANINGLESS WITHOUT IMPLEMENTATION AND VIGILANT CITIZENRY • ACCESS TO INFORMATION, AND JUSTICE, AND PUBLIC PARTICIPATION PROVIDE FULCRUM FOR FOCUSED CITIZEN ENGAGEMENT AND IN EXACTING ACCOUNTABILITY • SCIENCE EXPERTS/DATA ARE CRUCIAL. IF NIL, AVAIL OF PRECAUTIONARY PRINCIPLE • REACH OUT TO AS MANY STATE AGENCIES –Ombudsman, CHR, DILG, OP • STRENGTHEN PARTNERSHIP AND COLLABORATION WITH NETWORKS • MEDIA ADVOCACY IS ESSENTIAL

• FEW BUT DETERMINED ADVOCATES DO MAKE THE DIFFERENCE ELAW Founder Prof. John Bonine sharing his thoughts on Access Rights with students and faculty of the University of Cebu, Philippines

THANKS SO MUCH – FOR CARING!!!!