The Writ of Kalikasan and judicial activism

Responding to a petition filed by affected residents, Chief Justice Renato Corona the other day issued a “Writ of Kalikasan” requiring the owners of a leaking petroleum pipeline to respond to concerns about the effects of the leak on the public’s health and the environment.  It is the first time such a writ has been issued.  “Kalikasan” came with a “TEPO” – a temporary environmental protection order – also directed against the same companies, the First Philippine Industrial Corporation (FPIC) and the First Gen Corporation, both part of the Lopez group of companies.

The Writ of Kalikasan draws its mandate from a state policy found in the 1987 Constitution which guarantees to every citizen the “right to a balanced and healthful ecology.”  Though the writ is new, the high court’s career as environmental advocate is not.  It goes back to a tax payers’ class suit filed about 20 years ago mainly by minors – on behalf of their generation and the succeeding ones. They demanded the cancellation of timber license agreements (TLAs) that had been issued by the Marcos government.  The Regional Trial Court judge who heard the case dismissed the young people’s petition. The decision was challenged before the Supreme Court, which subsequently ruled in favor of the petitioners.  That landmark case, known as Oposa v. Factoran, launched an era of judicial activism, and became part of the legacy of former Chief Justice Hilario G. Davide Jr. What exactly is the the Writ of Kalikasan? The Court says it is a “remedy available to a natural or juridical person, entity authorized by law, people’s organization, non-governmental organization, or any public interest group accredited by or registered with any government agency, on behalf of persons whose constitutional right to a balanced and healthful ecology is violated, or threatened with violation by an unlawful act or omission of a public official or employee, or private individual or entity, involving environmental damage of such magnitude as to prejudice the life, health or property of inhabitants in two or more cities or provinces.”

The parallelism with the “Writ of Amparo,” a legacy of the court of former Chief Justice Reynato Puno, cannot be missed.  “Amparo” is a remedy that may be tapped by “any person whose right of life, liberty, and security has been violated or is threatened with violation by an unlawful act or omission of a public official or employee, or of a private individual or entity.” In both instances, the SC positions itself as the ultimate protector of all rights enshrined in the Constitution.

This is a role that we in the Philippines have learned to applaud and take for granted as correct and admirable.  I think that is largely because we are coming from an experience that has seen the corruption of executive power, the undermining of public institutions, and the absence of rational will-formation in the legislative process.  In modern constitutional systems, the separation of the branches of government is sacrosanct.  The judiciary is bound to existing law in order to ensure, to borrow a phrase from Jurgen Habermas, “both the certainty of law and the rational acceptability of court decisions.”

But, in addition, I think the judiciary cannot remedy the inadequacies of the administrative and legislative branches by assuming part of their functions, without finding itself swamped by demands it cannot possibly meet.  The enforcement of environmental laws and the everyday protection of citizens’ rights are, to my mind, basically executive functions. They are the responsibility of local government units and of national government agencies.

From what I gather, the Makati city government was on top of the situation from the moment the residents of the West Tower Condominium found their basement flooded with what seemed like gasoline or diesel fuel.  It was the city mayor who suggested the evacuation of the condominium residents and the engagement of a team of experts from the UP National Institute of Geological Sciences to search for the source of the gasoline.  It was the latter that traced the source to a leak in the underground FPIC pipeline.  Although the FPIC initially denied that their pipeline was the source of the fluid that had seeped into the West Towerbasement, they eventually acknowledged their responsibility.  I am not aware if the Department of Environment and Natural Resources ever intervened.  It would be disturbing if it did not.

The point is: remedies are available in the executive branch.  There seems no reason to think that the authorities who are expected to be in the frontline in such situations were not doing their work or were not doing it properly, or might have a motive not to do their job.  The high court’s issuance of a Writ of Kalikasan in this case may indeed lend urgency to the problem at hand.  That is good in a society that tends to be cavalier about ecological problems.  But, apart from this, what does it accomplish that cannot be done at this point without the high court’s intervention?

Against the background of persistent political crisis, the judiciary may often find itself taking on an activist role that, as former Chief Justice Artemio Panganiban argues, is provided for by the 1987 Constitution.

A few years ago, I was a beneficiary of the consoling activism of the Panganiban court.  But, as a student of modernity, I would counsel giving the different spheres of government enough time and leeway to solve their respective problems.  This is the only way we can evolve into a fully modern society.