4th Session_Writ of Kalikasan_Dir.perez

8/13/2019 4th Session_Writ of Kalikasan_Dir.perez

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Rules of Procedure for Environmental Cases Rules of Procedure for Environmental Cases 2 2nn ationa PAMB Summit ationa PAMB Summit

April 27 April 27--28, Monte Vista Resort, Calamba Laguna 28, Monte Vista Resort, Calamba Laguna

Atty Asis G PerezIn-Country Representative

US Department of the Interior


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Our countrys rich

natural resources is underser ous r s


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Marine resources are heavily stressed by- .

forest cover in the Philippines has been

re uce over e as or y years

The loss of forests and other habitats is

threatening the Philippines rich biodiversity

Unregulated waste disposal


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Several notable efforts are currently being done by the in

the areas of proper resource utilization, protection and.

these efforts starting with detection, apprehension,confiscation rosecution and finall ad udication wherewe will focus on the Special Environment Courts and the

Rule of Procedure for Environmental Cases, recentlypromulgated by the Supreme Court.


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1. ENVIRONMENTAL LAW ENFORCEMENT (ELE)-- , .

Attended by over 150 enforcement and regulatory

Provided clear dia nosis of roblems on EnvironmentLaw Enforcement

Crafted a clear vision for ELE in 5 years


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1. ENVIRONMENTAL LAW ENFORCEMENT (ELE)-- , .

Described En ironmental La Enforcement in theescribed Environmental Law Enforcement in thePhilippines as:

W keak

Fragmented

InsufficientIneffective

Inadequate

Ni g K gingas Kugon


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1. ENVIRONMENTAL LAW ENFORCEMENT SUMMIT

Challenges related to environmental law enforcementhallenges related to environmental law enforcement

Lack of Coordination

Inadequate funds logistics g

Lack of trained manpower

Policy gaps

Strong political interventionNeed for improved public education compliance

Inadequate legal support

Low prioritization among concerned agenciesLGU roles not fully tapped

Some enforcers are in cahoots with violators


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1. ENVIRONMENTAL LAW ENFORCEMENT SUMMIT

In 5 years time, we envisiona we -coor na e , we -funded environmental lawenforcement community

consist ing of highly-trainedand dedicated public andprivate individuals andinstitutions enforcing awell-defined set of laws.


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Agreed Action Points

Standardization of enforcement protocols

Creation of Enforcement Task Forces

Reactivation of multi-sectoral bodies/

agencies

Institutionalization of reward for informers/

1/10/2013


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ELE SPECIFIC PLANS

enforcers by a training center/institute

reng en mec an sms or ega supporand case presentation


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. Administrative Order No. 23-2008

Designation of 114 Branches from thesingle sala Courts as SpecialEnvironmental Court or Green Courts to

ear an ec e nv ronmen a ases.

violations of environmental laws


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2. Green Courts

Cases falling on Green Courts:

aws re a e o ores an ro ec e reas.

Laws related to Fisheries and Marine Resources.

Laws related to mines & other resource extraction.

Law related to pollution and waste

Laws related to bio-fuels and renewable energy

development and utilization of natural resources


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3. Rule of Procedure for Environmental Cases

This Rule shall govern the procedure in Civil, Criminal andS ecial Civil Action before the trial courts desi nated to tr

And decide cases involving enforcement or violations of

Environmental lawCreation of the Technical Working GroupDraft was submitted for consultation during

the EJ ForumComments in the EJ Forum were

Draft was submitted to the Supreme Court-

Committee Chaired the Chief Justice


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. Sub-committee on the Rule of Procedure for Environmental Cases

emoran um r er o. -

A review committeeChairperson : Chief Justice Reynato S. PunoMembers: Justice Presbitero J. Velasco

Justice Lucas P. BersaminUsec. Mary Ann Lucille L. Sering, DENR

u ge a ae . agos, r.Provincial Prosecutor Anthony A. Foz

-. . ,


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The Rules of Procedure forhe Rules of Procedure forEnvironmental Casesnvironmental Cases


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Objectives of the Draft Rule

To protect and advance the right ofpeop e o ea an a ance eco ogy.

Simplify and make procedureinexpensive for the implementation of

recautionar rinci leEnsure just and equitable administration

environmental lawsEnable courts to manage and monitorenvironmental cases


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Guidelines in Drafting the Rule

Rule must reflect the liberalized standingrequirements for plaintiff in

environmental suitRule should shape procedural elements

precautionary principleu e u v e e v

necessary for disposition ofenv ronmen a us ce


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Salient Features:Liberalized Standing.

ec. . o may e. - ny rea par y n n eres nc u ng egovernment, and juridical entities authorized by law may filea civil action involving the enforcement and violation ofEnvironmental law

. . . others, including minors or generations yet unborn, may filean action to enforce rights and obligations underenv ronmen a aw.

shall served as first lien on the judgment award


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Salient Features:Proceeding Summary in Nature:

Sec. 1. Pleadings and motions allowed are complaint, answer,cross claim, motion for intervention, motions and discoverand motion for reconsideration

ec. . ea ngs a are pro e nc u e o on o sm ss,Motion for bill of particulars, Motion for extension of time tofile pleadings, Petition for Certiorari, prohibition, mandamusvs. interlocutory order, Motion to declare defendant indefault, Motion for postponement, Reply and rejoinder, third

art com laint.


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Salient Features:Proceeding Summary in Nature:

Both Complaint and Answer must include affidavits

. .

material evidence affidavit of witnesses, documentaryevidence and object evidence

Sec. 11 The defendant shall attached affidavits ofwitnesses documentar evidence and if racticable ob ectevidence


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Salient Features:Proceeding Summary in Nature:Continuous Trial, Direct Examination and

Disposition

Sec. 1. Conduct of continuous trial not to exceed 3 months

Sec. 2 Affidavit In lieu of direct examination

Sec. 3 One day examination of witness rule

ec. ne year o ec e e case


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Salient Features: Application of Precautionary Principle:Precautionary principle was adopted to address what isgenerally perceived as a procedural obstacle inenvironmental liti ation. Under Rule 16 Sec.1:

Sec. 1. Precautionary Principle.- The court shall be guided by

precautionary principle and evidence of full scientificcertainty shall not be required from the party allegingenvironmental dama es or threats thereof.


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Salient Features: Application of Precautionary Principle:Precautionary principle shall be applied in cases wherehuman activities may lead to morally unacceptable harm thatis scientificall lausible but uncertain. In which case actionsshall be taken to avoid or diminish the harm.

ora y unaccep a e arm re ers o arm o uman or oenvironment that is: threatenin human life or health; serious and effectively irreversible;

inequitable to present and future generation; imposed without adequate consideration of human rightsof those affected.


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Novel ProvisionsEnvironmental Protection Order (EPO)

An EPO is an order issued b the court directin or en oinin a person or government agency to perform or desist from

performing an act in order to protect, preserve or rehabilitate.

This is effective for 72 hours from notice to the party

enjoined;

Ma be lifted an time b the issuin Court.

No bond is required of the applicant.


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Novel ProvisionsNO TRO against GRP agency enforcing

.

Courts are rohibited from issuin TRO or PreliminarInjunction against government agencies actions thatenforces environmental law or prevent violations thereof.

Except in cases of extreme urgency involving constitutionalissue that will result into grave injustice and irreparableinjury

performance of duty by government officials


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Novel Provisions

ecogn on o genc es u es ncustody and immediate disposal ofseized items, equipment, paraphernalia..

Custody and disposition of seized items shall be inaccordance with the applicable rules of the concernedgovernment agency

Upon proper motion, the court where the criminal case ispen ng, s a ssue an or er rec ng e sa e, auc on ordisposition of the confiscated items, tools or equipment

Proceeds of the sale shall be deposited in a governmentdepository bank, until final disposition


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Requirement of consent by concernedgovernment agencies in case of pleabar ainin :Rule 12, Section 1. ..set the arraignment within 10 days with notice to the ublic rosecutor and offended art or

concerned government agency

Rule , ec .,.. issue an order requiring the privateoffended party or the concerned government agency to

appear for the purpose of plea bargaining


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Participation (SLAPP)

actions whether civil, criminal or administrative,,government agency with intent to harass, vex,exert undue ressure or stifle the le al resource of

that person has taken or may take in theenforcement of environmental laws or protection ofenvironmental harm


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Writ of Kalikasan

. Ma be filled with the Su reme Court or an stations of the Court of Appeals

. B natural or uridical ersons or in behalf ofcommunity or other group

. Whose constitutional right to environment is

violated or threatened with violation... By an unlawful act or omission of the respondent. Involving environmental damage of such

magnitude as to prejudice health, life, or property. Of two or more cities or provinces


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Writ of Kalikasan

. Petition is verified with all the affidavits, documentaryevidence and other evidence available attached

. Writ is issued after 3 days from date of filing, if sufficient in

form and substance... Respondent shall file a return within 10 daysshowing

denial and all defenses.

. Failure of respondent to file return court shall proceedto here the case ex-parte. ar es s a es a s e e r c a ms y su s an a

evidence..

.applicable laws, rules and regulations was observed in theperformance of duty


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Writ of Kalikasan (Rule 7)

e e ava a e un er e r :

. Cease and desist from committing acts oromissions in violation of environmental laws

... Directing respondent to preserve, rehabilitate and

. Directing respondent to monitor compliance withorders of the court..

. Directing respondent to make periodic report on

the execution of the final judgment.Other relief related to protection of peoples right

to health

WRIT OF CONTINUING MANDAMUS


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WRIT OF CONTINUING MANDAMUS

SECTION 1. Petition for continuin mandamus.When an

agency or instrumentality of the government or officer thereof unlawfully neglects the performance of an act which the law

,station in connection with the enforcement or violation of anenvironmental law rule or re ulation or a ri ht therein or unlawfullexcludes another from the use or enjoyment of such right and thereis no other plain, speedy and adequate remedy in the ordinarycourse o aw, e person aggr eve ere y may e a ver epetition in the proper court, alleging the facts with certainty,

concerns an environmental law, rule or regulation, and praying that

judgment be rendered commanding the respondent to do an act orseries of acts until the judgment is fully satisfied, and to paydamages sustained by the petitioner by reason of the malicious

, ,

or regulations. The petition shall also contain a sworn certification ofnon-forum shopping.

SEC 2 Wh t fil th titi Th titi h ll b fil d


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SEC. 2. Where to file the petition.The petition shall be filedwith the Regional Trial Court exercising jurisdiction over the

territory where the actionable neglect or omission occurred orwith the Court of Appeals or the Supreme Court.

. . o oc e ees. e pe oner s a e exemp romthe payment of docket fees.

. . .and substance, the court shall issue the writ and require therespondent to comment on the petition within ten (10) days from

receipt of a copy thereof. Such order shall be served on therespondents in such manner as the court may direct, togetherw a copy o e pe on an any annexes ere o.Rules of Procedure for Environmental Cases 29

. . .the petition is filed may issue such orders to expedite theproceedings, and it may also grant a TEPO for the preservationof the rights of the parties pending such proceedings.

SEC 6 Proceedings after comment is filed After the comment


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SEC. 6. Proceedings after comment is filed.After the commentis filed or the time for the filing thereof has expired, the court may

hear the case which shall be summary in nature or require theparties to submit memoranda. The petition shall be resolved

submission of the petition for resolution.

SEC. 7. Judgment.If warranted, the court shall grant theprivilege of the writ of continuing mandamus requiring respondentto perform an act or series of acts until the judgment is fullysatisfied and to grant such other reliefs as may be warranted

.court shall require the respondent to submit periodic reports

detailin the ro ress and execution of the ud ment and thecourt may, by itself or through a commissioner or the appropriategovernment agency, evaluate and monitor compliance. Thepetitioner may submit its comments or observations on theexecution of the judgment.


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SEC. 8. Return of the writ.The periodic reports submitted bythe respondent detailing compliance with the judgment shall be

.the judgment, a final return of the writ shall be made to the court

.fully implemented, the satisfaction of judgment shall be enteredin the court docket.


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Thank You

4th Session_Writ of Kalikasan_Dir.perez

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