MANILA LAW COLLEGE

Sales St., Quiapo, Manila

ENVIRONMENTAL LAW AND

NATURAL RESOURCES
VOLUME 1

Submitted By:

EDWIN D. VILLA

Submitted To:
ATTY. RODOLFO RABAJA

Date Submitted:
May 11, 2019

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 SUSTAINABLE DEVELOPMENT

Development is the accumulation of human capital and its effective investment in the progress of an
economy.

Development entails improvement in the quality as well as quantity of life.

Shifts in Development Paradigms

 Development Act of US (1929) – natural resources to generate profit

o plantations/haciendas; american firms in logging/mineral exploration
 Developed vs underdeveloped – industrialization as vehicle of econ devt
o (greater production is key to prosperity and peace – truman)
 Recognition of disparity between north and south
o first NGO – Phil rural reconstruction movement (cooperativism)
o massive infusion by WB of capital and infrastructure
 Agri production and geographical equity – endless poverty/equity problem
o example – river basin development – NIA/Bureau of cooperatives
 Reversal of TOP-DOWN approach
o blooming of NGOs/Pos
 1971 – limit to growth
1972 – UN Conference on Human Settlements and Environment (Stockholm)
1973 1983 – UN – world commission on environment and development
1987 – our common future = PSSD – 1989
1988 1989/1992 – UN Conference on Environment and Development (Rio Summit)
1996 – PA 21

For Sustainable Development to happen, the world of nations agreed to focus all development
initiatives towards sustainability of resources.

Initiatives
 The Stockholm Convention held 30 years ago. The whole world agreed on the urgent need
to respond to the problem of environmental deterioration.

The Road to Rio

 Publication of “Our Common Future” by the UN World Commission on Environment and
Development in 1987
 Publication of the “Brundtland Report,” a landmark report establishing the need for
sustainable development in industrialized and developing countries.
 An “Earth Summit” officially known as the United Nations Conference on Environment and
Development, was held in June 1992 at Rio de Janeiro and participated by over 170 states
worldwide (114 of whom were represented by Heads of States of Governments)

Outcomes of the Earth Summit

• convention on biodiversity;
• framework convention on climate change;
• principles of forest management;
• Agenda 21;

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 • the Rio Declaration on Environment and Development It was agreed that the protection of
the environment, and social and economic development are fundamental to Sustainable
Development (based on the Rio Principles).
To achieve such development, the global program Agenda 21 and the Rio Declaration to reaffirm
global commitment were adopted.

The Agenda 21 was localized based on the maxim “Think globally, Act Locally” through our
Philippine Agenda 21.

Monterrey Conference on Finance for Development

Doha Ministerial Conference which defined for the world a comprehensive vision for the future of
humanity.

World Summit on Sustainable Development held at Johannesburg, South Africa from 2-4 September
2002.

What is Sustainable Development?

Development that meets the need of the present without compromising the ability of the future
generation to meet their own needs. (Brundtland, 1987)

it is the harmonious integration of

o a sound and viable economy;
o responsible governance;
o social cohesion; and
o ecological integrity

to ensure that development is a life-sustaining process.

Sustainable Development = Economic Development

+ Environment Protection
+ Social Reform
+ People’s Empowerment

Elements / Dimensions of Sustainable Development

• Political
• Economic
• Institutional
• Technological
• Socio-cultural
• Ecological

Parameters of Sustainable Development

Economic
• Maintaining a sustainable population
• Maintaining productivity and profitability of environment and natural resources

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Ecological
• Adopting environmental management weapons in policy and decision making
• Protecting the environment and conserving natural resources

Technological
• Promoting proper management of wastes and residuals
• Adopting environment-friendly technologies

Political
• Empowering the people
• Maintaining peace and order

Socio-cultural
• Promoting resource access and upholding property rights
• Promoting environmental awareness, inculcating env ethics and supporting env management
action

Institutional
• Improving institutional capacity/ capability to manage sustainable development

Philippine Agenda 21

- is our own national agenda for sustainable development.

- recognizes three key actors in sustainable development, and their roles in different realms of
society
o The Principles of Unity
o The Action Agenda
o The Implementation Strategies

Key Actors in Sustainable Development

• Government is the key actor in POLITY, which is concerned with democratic governance and
security of human rights.
• Civil Society is the key actor in CULTURE, which is concerned with the development of the
social and spiritual capacities of human beings.
• Business is the key actor in ECONOMY, which is mainly concerned with producing goods and
services to people.

Vision of Philippine Agenda 21

A better quality of life for all, through the development of a just, moral, creative, spiritual,
economically vibrant, caring, diverse yet cohesive society characterized by appropriate productivity,
participatory and democratic processes, and living in harmony within the limits of the carrying capacity
of nature and the integrity of creation. (PA 21, Section 1.4, p.12)

Philippine Agenda 21 Sustainable Development Principles

• Primacy of Developing Full Human Potential This puts man at the center of all development
efforts.

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 • Holistic Science and Appropriate Technology. Implies development of appropriate
technology to solve development problems with due consideration to its impact to society
and ecology.
• Cultural, Moral and Spiritual Sensitivity. Considers the inherent strengths of local and
indigenous knowledge, practices and beliefs, while respecting cultural diversity, moral
standards and the spiritual nature of the Filipino society.

Key Concepts and Principles of Sustainable Development

• Operates on the principle of indivisible world. Environmental problems cross national

boundaries in such phenomena as acid rain and global warming.
• It does not mean economic stagnation or giving up economic growth for the sake of the
environment. It should even promote economic development as a requisite for maintaining
environmental quality.
• SD in agriculture, forestry and the fisheries sectors involves conservation of land, water,
plant and animal genetic sources, does not degrade the environment and is technologically
appropriate, economically viable and socially acceptable. (ADB, 1991)
• At the level of the individuals and communities, SD is a process focused on people and
societies – how they define needs with reference to their own goals and the goals they share
as members of communities and nations.
• It is in contrast to development that focused on resource exploitation to generate short –
term wealth.

The Concept of Sustainable Development

• The concept of SD is an evolving one. There is no quick and fast rule towards SD because of
its multi-dimensional and complex nature.
• SD is dynamic and adjusts to the changing conditions and needs of the time.

The Importance of Conservation: History and Current Coastal Management Approaches in

the Philippines

Objectives
• Examine the evolution of the marine and fishery programs in the Philippines, including the
progression from community-based Coastal Resource Management (CRM) to Integrated
Coastal Management (ICM).
• Analyze current stage of MPA management and situate respective MPA’s within the bigger
picture of ICM.

Evolution of Philippine coastal management

- Up until1960s
- Resources considered unlimited in supply, not requiring management.
- Demand does not surpass supply.

Use of resources on a personal basis per individual or family needs. Resources were generally
allocated on a social basis, as influenced by culture or religion, rather than economic reasons.
• 1960s – 1970s
• Robust expansion and development in fisheries and aquaculture.

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 • Coastal resource development promoted by national government
• In 1950s, demand surpassed supply.
• Advent of the tragedy of the commons (Garrett Hardin)

Industrialization, technological advancement, and significant population increase brought about

resource use conflicts that rendered this approach ineffective.

Tragedy of the Commons

The Tragedy of the Commons theory is as old as Aristotle, who said:

“That which is common to the greatest number has the least care bestowed upon it.”

Regulated Access
• 1970s – 1980s
• National thrust was largely to promote increased efficiency in fishing effort rather than to
introduce/enhance management measures.
• Led to excessive fishing pressure, overfishing, stock depletion, and destruction of freshwater
and marine habitats.

Need for Regulation

• Three other major obstacles also contributed to the mismanagement of resources:
– Manila imperialism: conflicting policies such as PD 1152 (1977) and PD 704 (1975).
– The spatial barrier brought about by the country’s archipelagic nature made it
difficult for a centralized form of governance.
– Jurisdictional conflicts created confusion and hindered the implementation of key
resource protection laws (BFAR transfer from MNR to MAF).

Community-based resource management

• First case studies: Sumilon Island (1974) and Apo Island (1985).
• Illustrated the value of empowering communities to manage their coastal areas and
resources through their own initiative and with legal and institutional support of barangay
and municipality.
• Formula for reversal of fisheries decline: protect 25% of the reef, harvest the rest with non-
destructive fishing methods. (Rashid 1992)

The Advent of Integrated Coastal Management

• 1990s onwards
• Key milestones in political landscape (decentralization), legislation, and development
approaches.
• New CRM focused projects built on the rich experiences of small community-based CRM
projects such as San Salvador Island (Zambales), Mabini (Batangas), Apo Island (Negros
Oriental), Balicasag (Bohol), and Pamilacan (Bohol) – and scaled these up.
• Coastal management projects expanded their scope both vertically (management options)
and horizontally (stakeholder partnerships).
• Big donor-assisted projects in partnership with DENR and/or DA-BFAR provided the
foundation for ICM in the Philippines:
– Central Visayas Regional Project (WB, 1986-1992)
– Fishery Sector Program (ADB, 1990-1997)
– Coastal Resource Management Project (USAID, 1996-2004)

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 – Fisheries Resource Management Project (ADB & Japan, 1998-2005)
• Laying out lessons learned and best practices based on vast experiences.

Fisheries Management

Objectives
• To increase productivity of fishery resources in order to achieve food security.
• To regulate access to municipal waters and reserve its resources for the benefits of the
municipal fishers.
• To regulate the exploitation of fisheries resources and limit fishing efforts to sustainable
levels.
• To ensure the rational and sustainable development and management of the fishery
resources.
• To develop monitoring, control, and surveillance mechanisms and strengthen law
enforcement units.
• To ensure equity in fisheries exploitation.

Strategies
• Designation of closed season in harvesting commercially and ecologically important fish and
invertebrates during their spawning season and/or juvenile stage.
• Designation of closed areas for identified migration routes of commercially and ecologically
important fish.
• Registration, licensing, and permitting of fishers, fishing gear and fishing boats.
• Sustainable management of coastal aquaculture.
• Regulation on the deployment, use of and access to artificial reefs.
• Regulation of the construction and operation of fish corrals, other fishing gear activities that
occupy space in coastal waters.

Habitat Management

Objectives
• To protect, conserve, and rehabilitate existing habitats.
• To improve productivity and biodiversity of corals, seagrasses, mangroves, and estuaries.

Strategies
• Establishment of marine protected areas.
• Management of mangroves under the community-based forest management framework.
• Protection of seagrass beds by regulating fishing activities that are destructive to habitat.
• Enforcement of environmental and fisheries laws.

Coastal Zoning

Objectives
• To eliminate use conflict by delineating zones for specific uses or activities in the municipal
waters.
• To regulate activities in the different zones.
Strategies
• Delineation of municipal waters’ boundaries
• Designation of zones for specific uses (tourism, aquaculture, rehabilitation, etc.)
• Regulation of fishing activities and use of fishing gear in every zone.

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Shoreline Management

Objectives
• To protect the shoreline from further degradation due to destructive activities.
• To maintain access of the people to foreshore area.
• To minimize erosion and loss of beach to natural and human induced forces.

Strategies
• Regulation of sand and coral mining
• Setting up and maintenance of coastal setbacks for all development.
Climate change mitigation.

Waste Management

Objectives
• To eliminate or minimize the potential adverse impact of waste to both human and
environmental health.

Strategies
• Solid waste disposal program (segregation, recycling, and composting)
• Sewage waste treatment, especially for tourism and industrial facilities
Water quality monitoring.

PRESIDENTIAL DECREE No. 705

• Approved on May 19, 1975

• Revised the Presidential Decree No. 389
• Also known as the "Revised Forestry Code of the Philippines."

Section 2.
The State hereby adopts the following policies:
(a) The multiple uses of forest lands shall be oriented to the development and progress
requirements of the country, the advancement of science and technology, and the public welfare;
(b) Land classification and survey shall be systematized and hastened;

(c) The establishment of wood-processing plants shall be encouraged and rationalized; and
(d) The protection, development and rehabilitation of forest lands shall be emphasized so as to
ensure their continuity in productive condition.

Terms and Definition:

Public forest
Is the mass of lands of the public domain which has not been the subject of the present
system of classification for the determination of which lands are needed for forest purposes and
which are not.

Permanent forest or forest reserves

Refer to those lands of the public domain which have been the subject of the present system
of classification and determined to be needed for forest purposes.

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Forest lands
Include the public forest, the permanent forest or forest reserves, and forest reservations.

Grazing land
Refers to that portion of the public domain which has been set aside, in view of the
suitability of its topography and vegetation, for the raising of livestock.

Mineral lands
Refer to those lands of the public domain which have been classified as such by the
Secretary of Natural Resources in accordance with prescribed and approved criteria, guidelines and
procedure.

Forest reservations
Refer to forest lands which have been reserved by the President of the Philippines for any
specific purpose or purposes.

National park
Refers to a forest land reservation essentially of primitive or wilderness character which has
been withdrawn from settlement or occupancy and set aside as such exclusively to preserve the
scenery, the natural and historic objects and the wild animals or plants therein, and to provide
enjoyment of these features in such a manner as will leave them unimpaired for future generations.

Game refuge or bird sanctuary

Refers to a forest land designated for the protection of game animals, birds and fish and
closed to hunting and fishing in order that the excess population may flow and restock surrounding
areas.

Marine parks
Refers to any off-shore area inhabited by rare and unique species of marine flora and fauna.

Seashore park
Refers to any public shore area delimited for outdoor recreation, sports fishing, water skiing
and related healthful activities.

Watershed reservation
Is a forest land reservation established to protect or improve the conditions of the water
yield thereof or reduce sedimentation.

Watershed
Is a land area drained by a stream or fixed body of water and its tributaries having a
common outlet for surface run-off.

Critical watershed
Is a drainage area of a river system supporting existing and proposed hydro-electric power
and irrigation works needing immediate rehabilitation as it is being subjected to a fast denudation
causing accelerated erosion and destructive floods. It is closed from logging until it is fully
rehabilitated.

Mangrove
Is a term applied to the type of forest occurring on tidal flat along the sea coast, extending
along streams where the water is brackish.

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Kaingin
Is a portion of the forest land, whether occupied or not, which is subjected to shifting
and/or permanent slash-and-burn cultivation having little or no provision to prevent soil erosion.

Forest product
Means timber, pulpwood, firewood, bark, tree top, resin, gum, wood, oil, honey, beeswax,
nipa, rattan, or other forest growth such as grass, shrub, and flowering plant, the associated water,
fish, game, scenic, historical, recreational and geologic resources in forest lands.

Dipterocarp forest
Is a forest dominated by trees of the dipterocarp species, such as red lauan, tengile, tiaong,
white lauan, almon, bagtikan and mayapis of the Philippine mahogany group, apitong and the
yakals.

Pine forest
Is a forest composed of the Benguet Pine in the Mountain Provinces or the Mindoro pine in
Mindoro and Zambales provinces.

Industrial tree plantation

Is any tract of forest land purposely and extensively planted to timber crops primarily to
supply the raw material requirements of existing or proposed processing plants and related
industries.

Tree farm
Refers to any tract of forest land purposely and extensively planted to trees of economic
value for their fruits, flowers, leaves, barks, or extractives, but not for the wood thereof.

Selective logging
Means the systematic removal of the mature, over-mature and defective trees in such
manner as to leave adequate number and volume of healthy residual trees of the desired species
necessary to assure a future crop of timber, and forest cover for the protection and conservation of
soil and water.

Seed tree system

Is partial clearcutting with seed trees left to regenerate the area.

Healthy residual
Is a sound or slightly injured tree of the commercial species left after logging.

Processing plant
Is any mechanical set-up, machine or combination of machine used for the processing of
logs and other forest raw materials into lumber, veneer, plywood, wallboard, block-board, paper
board, pulp, paper or other finished wood products.

Forest officer
Means any official or employee of the Bureau who, by the nature of his appointment or the
function of the position to which he is appointed, is delegated by law or by competent authority to
execute, implement or enforce the provisions of this Code, other related laws, as well as their
implementing regulations.

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Bureau of Forest Development
• Shall have jurisdiction and authority over all forest land, grazing lands, and all forest
reservations including watershed reservations presently administered by other
government agencies or instrumentalities.
• It shall be responsible for the protection, development, management, regeneration, and
reforestation of forest lands;

the regulation and supervision of the operation of licensees, lessees and permittees for the taking or
use of forest products therefrom or the occupancy or use thereof; the implementation of multiple
use and sustained yield management in forest lands; the protection, development and preservation
of national parks, marine parks, game refuges and wildlife; the implementation of measures and
programs to prevent kaingin and managed occupancy of forest and grazing lands; in collaboration
with other bureaus, the effective, efficient and economic classification of lands of the public domain;
and the enforcement of forestry, reforestation, parks, game and wildlife laws, rules, and regulations.

• Shall regulate the establishment and operation of sawmills, veneer and plywood mills
and other wood processing plants and conduct studies of domestic and world markets of
forest products.
• Shall be headed by a Director, who shall be assisted by one or more Assistant Directors.
The Director and Assistant Directors shall be appointed by the President.
• Shall be directly under the control and supervision of the Secretary of the Department of
Natural Resources, hereinafter referred to as the Department Head.

Cutting, gathering and/or collecting timber or other products without license

Any person who shall cut, gather, collect, or remove timber or other forest products from
any forest land, or timber from alienable and disposable public lands, or from private lands, without
any authority under a license agreement, lease, license or permit, shall be guilty of qualified theft as
defined and punished under Articles 309 and 310 of the Revised Penal Code; Provided, That in the
case of partnership, association or corporation, the officers who ordered the cutting, gathering or
collecting shall be liable, and if such officers are aliens, they shall, in addition to the penalty, be
deported without further proceedings on the part of the Commission on Immigration and
Deportation. (Section 68)

The Court shall further order the confiscation in favor of the government of the timber or forest
products to cut, gathered, collected or removed, and the machinery, equipment, implements and
tools used therein, and the forfeiture of his improvements in the area.
The same penalty plus cancellation of his license agreement, lease, license or permit and
perpetual disqualification from acquiring any such privilege shall be imposed upon any licensee,
lessee, or permittee who cuts timber from the licensed or leased area of another, without prejudice
to whatever civil action the latter may bring against the offender. (Section 68)

EXECUTIVE ORDER NO. 318

• Approved on February 12, 1988

• Amending Sections 2 (a-i) and 3 (a) OF Executive Order No. 308, "Providing for the
reorganization of the Regional Development Councils"

Sec. 1. Section 2 (a-i) of Executive Order No. 308 providing for the reorganization of the Regional
Development Councils is hereby amended to read as follows:

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"(i) All provincial Governors and Mayors of chartered cities; Mayors of municipalities designated as
Provincial Capital of provinces where there are no chartered cities; and Mayors of the regional
center in each region;"

Sec. 2. Section 3 (a) is hereby amended to read as follows:

"Sec. 3. Regional Consultative Assembly. To strengthen further coordinative and consultative efforts
in the region, there is hereby created in every region a Regional Consultative Assembly herein
referred to as the Assembly to serve as a deliberative and consultative body to advise, assist, support
and cooperate with the Council in discharging its functions.

a. Membership in the Assembly. The Assembly shall be composed of the members of the House of
Representatives of the Philippine Congress representing the provinces and districts of the region
when authorized by Resolution of the House; members of the Regional Development Council and its
sectoral committees; heads of other national government agencies in the region; and upon
invitation of the Council, representatives of non-government organizations, sectarian organizations
and the academe in the region nominated by the said entities.
The assembly may meet as often as necessary but not less than once a semester."

Sec. 3. Section 4 is hereby amended to read as follows:

"Sec. 4. Chairmanship of the Council. The Council shall be headed by a Chairman who shall be
appointed by the President. The President shall appoint a Co-Chairman to exercise such functions as
the President may designate, provided that the co-chairman comes from the private sector if the
chairman is from the public sector or vice-versa. The Regional Director of the NEDA Secretariat shall
be Vice-Chairman of the Council.

The Chairman and Vice-Chairman of the Council shall be the ex-officio Chairman and Vice-Chairman,
respectively, of the Assembly."

CASE
LEONARDO A. PAAT, in his capacity as Officer-in-Charge (OIC), Regional Executive Director (RED),
Region 2 and JOVITO LAYUGAN, JR., in his capacity as Community Environment and Natural
Resources Officer (CENRO), both of the Department of Environment and Natural Resources
(DENR), petitioners,
vs.
COURT OF APPEALS, HON. RICARDO A. BACULI in his capacity as Presiding Judge of Branch 2,
Regional Trial Court at Tuguegarao, Cagayan, and SPOUSES BIENVENIDO and VICTORIA DE
GUZMAN, respondents.
G.R. No. 111107. January 10, 1997
TORRES, JR., J.:

FACTS:
On May 19, 1989 the truck of private respondent Victoria de Guzman was seized by the
DENR personnel while on its way to Bulacan because the driver could not produce the required
documents for the forest product found concealed in the truck. Petitioner Jovito Layugan, the
Community Environment and Natural Resources Officer (CENRO) ordered the confiscation of the
truck and required the owner to explain. Private respondent failed to submit required explanation .
The DENR Regional Executive Director Rogelio Baggayan sustained Layugan’s action for confiscation
and ordered the forfeiture of the truck. Private respondent brought the case to the DENR Secretary.

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Pending appeal, private respondents filed a replevin case before the RTC against petitioner Layugan
and Baggayan. RTC granted the same. Petitioners moved to dismiss the case contending, inter alia,
the private respondents had no cause of action for their failure to exhaust administrative remedies.
The trial court denied their motion. Hence, this petition for review on certiorari. Petitioners aver
that the trial court not legally entertain the suit for replevin because the truck was under the
administrative seizure proceedings

ISSUE:
Whether or not the instance case falls within the exception of the doctrine.

HELD:
The court held in the negative. The Court has consistently held that before a party is allowed
to seek the intervention of the court, it is a precondition that the he should have availed of all the
means of administrative processed afford him. Hence, if a remedy within the administrative
machinery can still be resorted to by giving the administrative officer concerned every opportunity
to decide on a matter that comes within his jurisdiction then such remedy should be exhausted first
before court’s judicial power can be sought. The premature invocation of court intervention is fatal
to one’s cause of action.

The doctrine is a relative one and its flexibility is called upon by the peculiarity and uniqueness of the
factual and circumstantial settings of a case. Hence, it is disregarded (1) when there is a violation of
due process, (2) when the issue involved is purely a legal question, (3) when the administrative
action is patently illegal amounting to lack or excess of jurisdiction, (4) when there is estoppel on the
part of the administrative agency concerned, (5) when there is irreparable injury, (6) when the
respondent is a department secretary whose acts as an alter ego of the President bears the implied
and assumed approval of the latter, (7) when to require exhaustion of administrative remedies
would be unreasonable, (8) when it would amount to a nullification of a claim, (9) when the subject
matter is a private land in land case proceedings, (10) when the rule does not provide a plain, speedy
and adequate remedy, and (11) when there are circumstances indicating the urgency of judicial
intervention.

a suit for replevin cannot be sustained against the petitioners for the subject truck taken and
retained by them for administrative forfeiture proceedings in pursuant to

SECTION 68-A. Administrative Authority of the Department or His Duly Authorized Representative To
Order Confiscation. In all cases of violation of this Code or other forest laws, rules and regulations,
the Department Head or his duly authorized representative, may order the confiscation of any forest
products illegally cut, gathered, removed, or possessed or abandoned, and all conveyances used
either by land, water or air in the commission of the offense and to dispose of the same in
accordance with pertinent laws, regulations and policies on the matter.

Dismissal of the replevin suit for lack of cause of action in view of the private respondents failure to
exhaust administrative remedies should have been the proper course of action by the lower court
instead of assuming jurisdiction over the case and consequently issuing the writ ordering the return
of the truck.

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 UNFCC & Kyoto protocol

A few basic facts

• Human activities are releasing greenhouse gases (GHG) into the atmosphere.
• Climate change is a global issue:
1 tCO2 emitted in India = 1 tCO2 emitted in USA.
• Rising levels of greenhouse gases are already changing the climate.
• Climate models predict the global temperature will rise by about 1,4 to 5,8 degrees by 2100.
• Climate change is likely to have a significant impact on the global environment, economy
and society.

The greenhouse gas effect

• Solar radiation
• Reflected back to space
• Absorbed by atmosphere
• Infra-red radiations emitted from Earth
• Some of the IR passes through the atmosphere
• Some is absorbed and re-emitted by greenhouse gas molecules
• Human activities are causing greenhouse gas levels in the atmosphere to increase. This
graphic explains how solar energy is absorbed by the earth's surface, causing the earth to
warm and to emit infrared radiation. The greenhouse gases then trap the infrared radiation,
thus warming the atmosphere.

The Earth has a natural temperature control system. Certain atmospheric gases are critical to this
system and are known as greenhouse gases. On average, about one third of the solar radiation that
hits the earth is reflected back to space. Of the remainder, some is absorbed by the atmosphere but
most is absorbed by the land and oceans. The Earth's surface becomes warm and as a result emits
infrared radiation. The greenhouse gases trap the infrared radiation, thus warming the atmosphere.

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Naturally occurring greenhouse gases include water vapour, carbon dioxide, ozone, methane and
nitrous oxide, and together create a natural greenhouse effect. However, human activities are
causing greenhouse gas levels in the atmosphere to increase. Note: Greenhouse gases are mixed
throughout in the atmosphere. For pedagogical reasons they are depicted here as a layer.

Center for climatic research, Institute for environmental studies, university of Wisconsin at Madison;
Okanagan university college in Canada, Department of geography; World Watch, November-
December 1998; Nature.

The global carbon cycle shows the carbon reservoirs in Gt (Giga tonne= one thousand million tonnes)
and fluxes in Gt/year. The indicated figures are annual averages over the period 1980 to 1989. The
component cycles are simplified and the figures present average values. The riverine flux,
particularly the anthropogenic portion, is currently very poorly quantified and is not shown here.

Evidence is accumulating that many of the carbon flows can fluctuate significantly from year to year.
In contrast to the static view conveyed in figures like this one, the carbon system is dynamic and
coupled to the climate system on seasonal, annual and decadal timescales.

Carbon cycle
Carbon is the basis of all organic substances, from fossil fuels to human cells. On Earth, carbon is
continually on the move – cycling through living things, the land, ocean, atmosphere. What happens
when humans start driving the carbon cycle? We have seen that we can make a serious impact –
rapidly raising the level of carbon in the atmosphere. But we really have no idea what we are doing.

At the moment we don’t even know what happens to all the carbon we release from burning fossil
fuel. Obviously a lot of it goes into the atmosphere, but every year we loose track of between 15 and
30% (NASA). Scientists speculate that it is taken up by land vegetation, but no one really knows. This
sort of uncertainty makes it doubly difficult to predict the outcome of tampering with something as
complex as the carbon cycle.

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Human activity influence Well-known graphs of the GHG-trend.

Global atmospheric concentration of CO2

Atmospheric CO2 has increased from a pre-industrial concentration of about 280 ppmv to about 367
ppmv at present (ppmv= parts per million by volume). CO2 concentration data from before 1958 are
from ice core measurements taken in Antarctica and from 1958 onwards are from the Mauna Loa
measurement site in Hawaii. The smooth curve is based on a hundred year running mean. It is
evident that the rapid increase in CO2 concentrations has been occurring since the onset of
industrialization. The increase in CO2 emissions has closely followed the increase in use of fossil
fuels. Some other greenhouse gases, such as Nitrous Oxides and Methane are showing similar
trends. Again, the increase is directly related to the increased level of human activities (farming,
transport, energy use etc.).

CO2 concentrations in the atmosphere have been measured at an altitude of about 4,000 meters on
the peak of Mauna Loa mountain in Hawaii since 1958. The measurements at this location, remote
from local sources of pollution, have clearly shown that atmospheric concentrations of CO2 are
increasing.

Trends in global average surface temperature

Along with the increased levels of greenhouse gases in the atmosphere, the average temperatures in
the atmosphere and in oceans are also increasing.

The figure shows the combined land-surface air and sea surface temperatures (degrees Centigrade)
1861 to 1998, relative to the average temperature between 1961 and 1990. The mean global surface
temperature has increased by about 0.3 to 0.6°C since the late 19th century and by about 0.2 to
0.3°C over the last 40 years, which is the period with most reliable data. Recent years have been
among the warmest since 1860 - the period for which instrumental records are available. Warming is
evident in both sea surface and land-based surface air temperatures. Urbanization in general and
desertification could have contributed only a small fraction of the overall global warming, although
urbanization may have been an important influence in some regions. Indirect indicators such as

16 | P a g e
borehole temperatures and glacier shrinkage provide independent support for the observed
warming.

Natural forces (solar variation and volcanic activity) alone cannot explain the recent global
temperature increase. This graphic shows the temperature anomalies (in degrees Celsius) that were
expected to occur due to natural forces only, from the year 1850 to the year 2000, according to
climate models, and the actual anomalies that have occurred. The graphic also shows the expected
and actual anomalies due to anthropogenic (human-caused) factors only (anomalies due to
greenhouse gases and sulphate aerosols). Finally, the graphic shows the expected and actual
temperature anomalies that are due to natural and anthropogenic forcing combined.

Temperature trends (1976 to 2000)

This slide shows the average atmospheric temperature change from 1976 to 2000. Warming has not
been globally uniform.

The recent warming has been greatest between 40°N and 70°N latitude, though some areas such as
the North Atlantic Ocean have cooled in the recent decades. The temperature change is uneven due
to a wide range of factors, in particular land mass, and hot and cold ocean streams. While the
overwhelming trends is increased temperatures, there are some areas that are becoming colder.
Current scientific models also predicts that the climate change effect may alter the ocean streams in
such a way that some affected land masses may experience drastic temperature decrease.

Precipitation trends (1900 to 2000)

One of many anticipated effects from the greenhouse effect, is changed weather patterns, including
changed precipitation. This slide shows how the average annual rain fall changed from 1900 to 2000.
Changes in precipitation has a direct impact on the agricultural food production capacity in the
region, both in terms of the volume of food that can be produced, and the type of food (grains,
vegetables, fruits etc) that can be grown in the area. Areas that have experienced drastic reductions
in rain fall is normally negatively affected in this regard.

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Geophysical Fluid Dynamics Laboratory (GFDL), Princeton University.

The predicted changes in temperature and rainfall by the year 2100 according to the GFDL model,
assuming a doubling of CO2 and temperature increase by 3,7°C from 2000 to 2100. This is
considered by the International Panel on Climate Change (the UNEP coordinated global scientific
expert group assessing the climate change) as a moderate prediction. As can be seen, the changes
are not uniform over the planet but different areas will experience various levels of impact, with
local temperature changes between one and 12 degrees C, and rainfall increasing or decreasing
between -20 and +20 percent.

As an estimate of how serious this kind of impact is, it can be compared with the last ice age, 15.000
years ago, when the average temperatures were at a mere five degrees below today’s average.

Arctic Climate Impact Assessment (ACIA), 2004. Impacts of a Warming Arctic.

This oblique view of the Arctic polar ice cap in September shows the significant reduction that has
happened over a time period just over 20 years, from 1979 to 2003. Future predictions shows even
more drastic reduction of the ice cap, thus opening new area for natural resources extraction and
marine transports.

As opposed to popular belief, the melting of the polar ice caps would not be a main cause for
increased sea levels (the increased sea levels would mainly result from an expanded volume of
existing sea water, resulting from a higher average temperature in the water). The melting of the
polar caps would however not only in itself result in the extinction of the polar eco systems in large
areas, but would also affect the ocean hot and cold currents that are key components for the global
climate system. This kind of secondary rebounding effects from climate change is one example of
why it is difficult to model the exact impact of climate change.

Impact of Climate Change on society

Climate change is affecting much wider areas than only the climate. An example of how climate
change already today has an impact on society is the increased frequency of extreme weather
events (storms, typhoons etc). As is evident in these pictures, the effects goes far beyond temporary
inconvenience, and can be measured in billions of dollars of damages and human health and lives.

Cost of extreme weather events

This slide shows the economic costs from damages caused by major storms, hurricanes and
typhoons worldwide over the past decades.

The graph shows that the number and intensity of storms have increased, especially in the last ten
years of last century. The costs (insured and uninsured) have risen proportionately. This trend has
continued into the new millennium with “super storms” such as Hurricane Katrina causing
unprecedented damages and costs.

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Less visual but with major impact

Some more examples of the impact of climate change on the environment and society. It is
important to note that not all effects are negative, and in some areas climate change would have a
positive impact, such as extended growing seasons in agriculture. However, in most cases and on a
global scale the results are overwhelmingly negative.

If greenhouse gas concentrations keep rising, climatic changes are likely to result. Those changes will
potentially have wide-ranging effects on the environment and socio-economic and related sectors,
such as health, agriculture, forests, water resources, coastal areas and biodiversity.

United Nations Framework Convention on Climate Change

A global legal instrument (international agreement) on the control and management of greenhouse
gases (GHG).

Adopted in 1992, entered into force in 1994.

Status of participation: 189 Parties.

Contains 2 annexes:

Annex 1: countries with obligations to take measures to mitigate the effects of climate change

Annex 2: countries with obligations to provide financing to developing countries for their obligations
under UNFCC

Affiliated instruments: Kyoto Protocol.

The UN Framework Convention on Climate Change sets an overall framework for intergovernmental
efforts to tackle the challenge posed by climate change. It recognizes that the climate system is a

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shared resource whose stability can be affected by industrial and other emissions of carbon dioxide
and other greenhouse gases. The Convention enjoys near universal membership, with 189 countries
having ratified.

Under the Convention, governments:

- gather and share information on greenhouse gas emissions, national policies and best
practices
- launch national strategies for addressing greenhouse gas emissions and adapting to
expected impacts, including the provision of financial and technological support to
developing countries
- cooperate in preparing for adaptation to the impacts of climate change

The Convention was launched at the occasion of the United nations Conference on Environment and
Development in Rio de Janeiro in 1992 (also known as the “Earth Summit” or the “RioConference”)
and entered into force on 21 March 1994.

Annex I identifies countries (in principle developed countries) that have an obligation to take
measures (policies etc) to reduce their GHG emissions (no target specified) and to increase GHG sink,
such as forests. Annex I countries also have to provide regular reports on their GHG emissions (GHG
inventory) and on measures they have taken to reduce them.

Annex II identifies countries that are obliged to financially support developing countries to meet
their obligations under UNFCCC. This is first and foremost the requirement to establish a national
inventory of GHG emissions.

The Kyoto protocol is part of the Convention and specifies emission reduction goals for (some)
countries, and provides supporting financial mechanisms to achieve those goals. While the Kyoto
Protocol is part of UNFCCC it is also a much more demanding agreement than UNFCCC itself. For this
reason, not every country that have signed UNFCCC have also signed the Kyoto protocol (with USA
being the most well known example).

What is the overall goal?

“ to protect the climate system for the benefit of present and future generations of mankind. ”

What are the further objectives?

“ to achieve stabilisation of greenhouse gas concentrations in the atmosphere at a level that would
prevent dangerous anthropogenic interference with the climate system. ”

Time taken to reach equilibrium

As was mentioned previously, the climate system has a long response time, why the greenhouse
effect will become more severe in the future even if emissions were cut immediately. This is the
reason why UNFCCC is not only targeting emission reductions, but is also promoting mitigating
measures to climate change.

The graph is illustrating the reaction time of the global climate in response to GHG-concentration.
Reduction of GHG-emissions is not immediately visible ! Climate changes take place over
tens/hundreds of years, but this implicates that when climate change occurs it is not easily to
reverse again quickly.

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What can be done to protect the climate system?

• Enhancement of energy efficiency in relevant sectors and development of new and

renewable energy forms/sources.
• Protection of sinks and reservoirs of GHGs.
• Limitation and reduction of transport and waste management-related emissions.
• Policy changes toward elimination of market imperfections and implementation of market-
based instruments, and policy reform to support GHG limits and reductions.

The specific measures that are promoted under UNFCCC include both emission reductions and
protection/increase of sinks (areas that are able to absorb GHG, especially forest areas).

UNFCCC is more or less all inclusive: It targets production processes in industry, energy production,
transport and waste management, and it targets protection of GHG sinks. UNFCCC is also promoting
the use of technology transfer, exchange of know-how, policies, and market instruments to achieve
its goals. The drawback of UNFCCC (exclusive the Kyoto protocol) is that it is not quantifying in
specific terms the required activities, financial support, or emission targets for parties top the
convention.

Institutional framework

Short description of how UNFCCC relates to other world organizations dealing with climate change

In 1988, UNEP and WMO jointly established the Intergovernmental Panel on Climate Change (IPCC)
as concern over climate change became a political issue. The purpose of the IPCC was to assess the
state of knowledge on the various aspects of climate change including science, environmental and
socio-economic impacts and response strategies.

The IPCC is recognized as the most authoritative scientific and technical voice on climate change,
and its assessments had a profound influence on the negotiators of the United Nations Framework
Convention on Climate Change (UNFCCC) and its Kyoto Protocol. The IPCC is organized into three
working groups plus a task force on national greenhouse gas (GHG) inventories. Each of these four

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bodies has two co-chairmen (one from a developed and one from a developing country) and a
technical support unit. Working Group assesses the scientific aspects of the climate system and
climate change; Working Group II addresses the vulnerability of human and natural systems to
climate change, the negative and positive consequences of climate change, and options for adapting
to them; and Working Group III assesses options for limiting greenhouse gas emissions and
otherwise mitigating climate change, as well as economic issues.

Approximately 400 experts from some 120 countries are directly involved in drafting, revising and
finalizing the IPCC reports and another 2,500 experts participate in the review process. The IPCC
authors are nominated by governments and by international organizations including NGOs.

The United Nations Framework Convention on Climate Convention is the foundation of global efforts
to combat global warming. Opened for signature in 1992 at the Rio Earth Summit, its ultimate
objective is the 'stabilization of greenhouse gas concentrations in the atmosphere at a level that
would prevent dangerous anthropogenic human-induced interference with the climate system. The
Convention's supreme body is the Conference of the Parties (COP), which comprises the 180 states
that have ratified or acceded to the agreement. In addition, the Subsidiary Body for Scientific and
Technological Advice (SBSTA) provides the COP with timely information and advice on scientific and
technological matters relating to the Convention. The Subsidiary Body for Implementation (SBI)
helps with the assessment and review of the Convention's implementation.

Organization of the Convention

Short description of the organizational set-up of UNFCCC

Conference of Parties: Main governing and decision-making body, facilitate information exchange
and activities implemented jointly (AIJ). Meetings are held every year. COP-12 held in Nov 2006, in
Kenya.

Secretariat: serves bodies of both the UNFCCC and KP, provides implementation assistance to
parties

Subsidiary Body for Scientific and Technological Advice: links scientific, technical and technological
assessments, the information provided by competent international bodies, and the policy-oriented
needs of the COP

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Subsidiary Body for Implementation: develop recommendations to assist the COP in the review and
assessment of the implementation of the Convention and in the preparation and implementation of
its decisions

Joint Working Group on Compliance (JWG): develop procedures and mechanisms relating to a
compliance system

Relevant international bodies:

Global Environment Facility (GEF) - financing of projects

Intergovernmental Panel on Climate Change (IPCC) - research on climate change measurement and
impacts

National UNFCCC focal points

National CDM authorities

National UNFCCC focal points

• Responsible for the Government’s interaction and communication with UNFCCC.

• Usually a specific ministry / department.
• Usually interacting with a wide range of other organizations / stakeholders at the
national level.

National CDM or JI organizations (DNA)

• Specific organization (authority) that is responsible for approving CDM and JI activities at
the national level.
• Often, but not always, the same as the National Focal Point.

The Kyoto Protocol

• An addition to UNFCCC that requires developed countries to limit their GHG emissions in
2012, as compared to their emissions in 1990.

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 • Provides detailed methods and mechanisms for how the emission reductions can be
achieved, measured and verified.
• All members in UNFCCC have not agreed to sign the Kyoto Protocol!

A long process of ratification

• Adopted in 1997, but required the ratification of more than 55 countries representing more
than 55% of GHG emissions.
• Entered into force on February 16th, 2005 after ratification of the Russian Federation (now
163 countries covering 61.6% of global emissions have ratified the protocol).
• Kyoto Protocol characteristics
• Commits Annex 1 countries to reduce GHG emissions by 5.2% by 2012 compared to 1990.
• Actual commitment period: 2008 - 2012.
• Individual goals for each country.

3 mechanisms to help countries to reach their commitments

• ETS - Emissions Trading System

• CDM - Clean Development Mechanism (session 5)
• JI - Join Implementation (session 6)

6 greenhouse gases: CO2, CH4, N2O, PFCs, HFCs, SF6.

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6 greenhouse gases concerned

Greenhouse gases covered by the Kyoto Protocol are:

CO2 Carbon dioxide

CH4 Methane

N2O Nitrous Oxide

SF6 Sulphur hexafluoride

PFCs Perfluorocarbones

HFCs Hydrofluorocarbons

Each GHG has its own Global Warming Potential. The Global Warming Potential (GWP) is the
warming effect that one unit of a GHG has as compared to the same unit of the GHG carbon dioxide
(CO2). 1 Kg of methane (CH4) has for example the same warming potential as 23 Kg of CO2.

In order to have only one unit to refer to when talking about GHG, the amount of GHG is measured
as “CO2 equivalents”. It means that instead of saying that we have emitted 1 kg of CH4, we say that
we have emitted 23 kg of CO2 equivalents (of CH4). So even if we are always referring to CO2
equivalents when we are talking about GHG, we may in fact not at all refer to CO2 but to any of the
greenhouse gases!

Even though methane and nitrous oxide have much higher GWPs than carbon dioxide, because their
concentration in the atmosphere is much lower, carbon dioxide remains the most important
greenhouse gas, contributing about 60% to the enhancement of the greenhouse effect.

Ratio of global warming, from one-unit mass of a GHG to that of one-unit mass of CO2 over a period
of time.

There are several other GHG than the ones included in the Kyoto Protocol. Water vapour is the most
abundant greenhouse gas. However, human activities have little direct impact on its concentration
in the atmosphere. Some other GHG that have a high GWP have also a big impact on the ozone layer
and are therefore already covered by the efforts to phase these out by the Montreal protocol.

Sectors concerned

Energy supply (24 to 48% of total GHG)

• Fuel combustion (energy production, manufacturing, transport, etc.)

• Fugitive emissions (oil and natural gas, solid fuels, etc.)

Industrial processes (5 to 36% of total GHG)

• Production (metal production, mineral products, chemical industry etc.)

• Consumption (halocarbons and sulphur hexafluoride, solvents etc.)

Waste management (primarily CH4)

• Solid waste disposal on land, incineration, wastewater handling etc.

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Land use (0,3 to 9% of total GHG)

• Agriculture (enteric fermentation, manure management, rice cultivation, agricultural soils,

prescribed burning of savannas, field burning of agricultural residues, etc.)
• Forestry.

Flexible mechanisms

ETS - Emissions Trading System

• Can be used as supplementary to actions to meet reduction commitments.

• One AAU (Assigned Amount Units) represents the tradable right to emit one t CO2eq.
• CDM - Clean Development Mechanism
• Allows public or private entities to invest in greenhouse gas (GHG) mitigating activities in
developing countries.
• CERs (Certified Emission Reductions) can be used by the project investor to meet its own
commitments, or sold on the open market.
• JI - Joint Implementation
• Emission reduction projects implemented jointly between Annex I countries (developed
countries and transition economies).
• ERUs (Emission Reduction Units) can be used by the project investor to meet its own
commitments, or sold on the open market.

The Kyoto flexible mechanisms are offering alternative ways for companies and other stakeholder to
achieve their emission commitments, than by achieving them through in-house reductions. The
reason for a company to consider pursuing emissions reductions outside their own operations is that
the cost to achieve them through CDM or JI may be cheaper. In this way the flexible mechanisms
support a market that will seek to achieve emission reductions globally where they are least
expensive.

Key Opportunities for industrials

In Developing Countries (part of Annex 2):

No national GHG reduction commitments but opportunity to host CDM projects, thereby benefiting
from associated investments, technology transfer and transfer of know-how.

In Economies in Transition (part of Annex 1):

JI present an opportunity for these countries with “emission reductions to spare” to attract
investments and technology transfer.

What are the main opportunities for industrials?

• Technology transfer to improve process and energy efficiency

• Co-finance investments by selling emission credits
• Prepare for future commitments (after 2012)
• Achieve sustainable development

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Financial assistance

UNFCCC and the Kyoto protocol provides for several channels of financial assistance to support
developing countries meeting the challenge of climate change.

The special climate change fund will finance activities relating to climate change in the areas of
adaptation; technology transfer; energy, transport, industry, agriculture, forestry and waste
management; as well as activities to assist developing countries whose economies are highly
dependent on income generated from fossil fuels in diversifying their economies. The least
developed countries fund will support a work programme for LDCs. The adaptation fund, operating
under the Kyoto Protocol, will be financed from the "share of the proceeds" on the clean
development mechanism and other sources of funding. Several Annex II Parties have already
pledged to collectively contribute US$410 million a year to the funds by 2005.

The Convention specifies that Annex II Parties shall provide financial assistance to developing
countries to enable them to address climate change and adapt to its adverse effects (Article 4.3 and
4.4). It establishes a financial mechanism to channel such financial assistance to developing
countries, which is currently operated by the Global Environment Facility.

Assistance at national level

As indicated above there is a wide range of commitments for countries that have signed on to the
Kyoto protocol and/or UNFCCC. There is mainly two groups (with a few exceptions) of countries with
different commitments: Annex I countries (mostly developed countries) that have more far reaching
commitments, including emission reductions and support to developing countries, and non-Annex I
countries that have no emission reduction commitments under the Kyoto protocol, but are still
committed to report their GHG inventories, and also are committed under UNFCCC in more general
terms to seek to limit their emissions.

In both Annex I and non-Annex I countries there are clear opportunities and needs for providing
assistance in meeting commitments, e.g. in preparing inventories for the national GHG reporting, in
providing technical assistance in industry and other concerned sectors, in providing training and
capacity building and so on.

While the need for support is most accentuated in developing countries, the pressure on developed
countries to meet their emission limit commitments should not be under estimated. The Kyoto
Protocol prescribes that for each tonne of GHG (CO2 equivalent) that the country exceeds its limits
in the commitment period (2008-2012), the country will need to reduce this at a factor 1.3 in the
next commitment period. In other words, countries that are not meeting their commitments in this
period will get punished with an extra stringent emission limit in the next period.

CP practitioners: focal points for action

From the perspective of CP organizations, UNFCCC and in particular the Kyoto Protocol, have many
opportunities to offer; both as means to promote CP towards industry and government, and from a
pure business perspective for the CP organization itself. It is in the interest and mandate of most CP
organizations to promote improved environmental management in industry, directly towards
industry, via the government and through other stakeholders. Clearly there is a need in most
countries to create awareness and capacity in governments and industry to make use of CP as a tool

27 | P a g e
to identify and implement GHG emission reduction opportunities. CP organizations can work with all
stakeholders to create that awareness and capacity.

Secondly, CP organizations have a unique access to industry and may also engage as a project
proponent or project partner in specific CDM and JI projects. There is normally a commercial aspects
of such projects and therefore an opportunity for CP organizations to deliver their manadate on a
commercial basis.

Thirdly, both CDM and JI requires external verification of proposed projects, which is to be carried
out by so called Designated Operational Entities (DOE). Some CP organizations have the capacity and
profile that would allow them to seek accreditation to function as DOE, which again would offer a
very good position for supporting a wider adoption of the preventive approach in CDM/JI
implementation.

How can they work with governments?

• Public sector awareness and education

• Policy advice related to industries’ needs to enable JI/CDM projects, in co-ordination with
National CDM authority.
• Build relationship with National JI/CDM authority:
o co-operation on awareness-raising, workshops;
o co-operation with policy advice to government;
o co-operation with pilot studies, projects.

The strength of many CP practitioners is that they have established networks with both industry and
the private sector. They also possess technical and policy expertise, that makes them suitable and
credible as agents for capacity building in cross-cutting areas, such as CDM.

An additional advantage is the on-the-ground approach of the CP methodology, that makes CP

practitioners attractive for industry to consult on the potential for CDM/JI opportunities in their
organization. CP practitioners understand the theory and organizational set-up of CDM and JI, but
are sufficiently practical to translate the theory into hands-on measures in the individual company.

How can they work with industry ?

• Private sector awareness and education workshops.

• Continued emphasis on enhancement of energy efficiency in relevant sectors including GHG
measurements:

- renewable energy sources

- energy conversion and recovery

- new energy efficient processes

- technology transfer for non-energy-related GHG reductions

• Develop projects with industry:

- integrate greenhouse gas calculations into in-plant assessments;

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- transfer CP investment financing knowledge toward JI/CDM related project development for.

Over the past several years a considerable effort has been undertaken by UNEP and other
UN organizations in demonstrating how CP can be used as an instruments to achieve energy
efficiency in industry. As referred to below there are several tools available to assist CP practitioners
in using CP for this purpose. As energy efficiency improvements normally result in GHG emission
reductions, this is especially relevant to the role of CP of practitioners in relation to UNFCCC.

Technology Information System

• Over 40 case studies;

• More than 600 links to relevant web sites;
• An inventory of methods, models and tools;
• Inventory of technology cooperation projects:

o Projects cited in National Communications of Annex I Parties or non-Annex 1;

o Projects cited in submissions from Parties within the consultative process

• Activities implemented jointly projects;

• Global Environmental Facility projects and programmes;
• Some bilateral projects not reported in national communications of Annex I Parties,
• Some multilateral projects and programmes such as non-GEF related activities of UNEP,
UNDP, UNIDO, regional development banks and other multilateral implementing agencies.

Republic Act No. 7076

Republic Act No. 7076 (1991), otherwise known as the “People’s Small-Scale Mining Act”
defines small-scale mining as minimum activities which rely heavily on manual labor using simple
implements and methods, and which do not use explosives or heavy mining equipment. The main
purpose of the law is: (1) To effect an orderly and systematic disposition of small-scale mining areas
in the country; (2) To regulate the small-scale mining industry with the view to encourage their growth
and productivity; and (3) To provide technical, financial and marketing assistance and efficient
collection of government revenues. Through this law, the harmful effects of the classic trade-off
between development and environment could be minimized if not totally avoided. This law was
authored by Senator Aquilino Pimentel Jr.

With Republic Act 7076 it allows small miners under this law to use only simple equipment like pick
and shovel in extracting gold and other precious metals in their mining areas. In this age of modern
technology, this law is making sure that the small mining law should benefit the small miners and not
only the big-time operators who are using the skills and sweat of small-scale miners to accumulate a
fortune.

Under RA 7076, no ancestral land may be declared as a people’s small-scale mining area
without the prior consent of the cultural communities concerned. This respects the rights of the
indigenous peoples to their ancestral lands which are fully guaranteed under existing laws. The law
defines small miners as Filipino citizens who, individually or in tandem with others, voluntarily form a
cooperative, duly licensed by the Department of Environment and Natural Resources, to engage in the
extraction or removal of minerals or ore-bearing materials from the ground.

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 HIGHLIGHTS

It’s implementing rules lay down the powers and functions of the Department of Environment
and Natural Resources, the Provincial/City Mining Regulatory Board and in coordination with other
concerned government agencies. The DENR together with the other concerned government agencies
is designed to achieve an orderly, systematic and rational scheme for the small-scale development
and utilization of mineral resources in certain mineral areas in order to address the social, economic,
technical, and environmental connected with small-scale mining activities.

While the Provincial/City Mining Regulatory Board (PCMRB) created under the direct
supervision and control of the Secretary which is the board of PCMRB, is the implementing agency of
the Department of Environment and Natural Resources which has the powers and function subject to
review by the Secretary.

PROHIBITED ACTS

Awarded contracts may canceled on the following grounds:

1. Non-Compliance with the terms and conditions of the contract and that of existing mining laws, rules
and regulations including those pertaining to mine safety, environmental protection and conservation,
tree cutting, mineral processing and pollution control;
2. Non-compliance with the contractor's obligations to existing mining claim holders/private landowners
as stipulated in Section 13, 17 and 18 of this Order;
3. Non-payment of fees, taxes, royalties or government share in accordance with this Order and existing
mining laws;
4. Abandonment of mining site by the contractor; and
5. Ejectment from the People's Small-scale Mining Area of the Contractor by the government for reasons
of national interest and security.

PENALTIES/FINES
When contracts are canceled for grounds from the abovementioned, the Secretary may impose
fines of an amount not less than Twenty Thousand Pesos (P20, 000.00) but not more than One
Hundred Thousand Pesos (P100, 000.00). Non-payment of the fine imposed shall render the small-
scale mining contractor ineligible for other small-scale mining contracts.

CASE 2013-0009: LEAGUE OF PROVINCES OF THE PHILIPPINES, -VERSUS- DEPARTMENT OF

ENVIRONMENT AND NATURAL RESOURCES AND HON. ANGELO T. REYES, IN HIS CAPACITY AS
SECRETARY OF DENR (G.R. NO. 175368, 11 APRIL 2013, PERALTA J. SUBJECT/S: CONSTITUTIONALITY
OF CERTAIN PROVISIONS OF THE SMALL SCALE MINING ACT (BRIEF TITLE: LEAGUE OF PROVINCES
VS. DENR).

DISPOSITIVE:

WHEREFORE, THE PETITION IS DISMISSED FOR LACK OF MERIT. NO COSTS.

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SO ORDERED.

XXXXXXXXXXXXX

SUBJECTS/DOCTRINES:

WHAT IS THE ISSUE IN THIS CASE?

AT ISSUE IS: THE CONSTITUTIONALITY OF SECTION 17 (B )(3)(III) OF THE LOCAL GOVERNMENT CODE
OF 1991 AND SECTION 24 ‘OF R.A. NO.7076.

XXXXXXXXXXXXXXXXXX

IF THE VALIDITY OF THE STATUTE IS BEING QUESTIONED, WHAT IS THE PRESUMPTION?

THAT IT IS VALID.

XXXXXXXXXXXXX

WHAT IS THE BASIS OF THIS PRESUMPTION?

THE DOCTRINE OF SEPARATION OF POWERS WHICH ENJOINS THE COURT TO OBSERVE COURTESY TO
THE LEGISLATIVE BRANCH.

XXXXXXXXXXXXXX

WHEN THEREFORE WILL A COURT DECLARE A STATUTE INVALID?

WHEN PETITIONER HAS SHOWN A CLEAR AND UNEQUIVOCAL BREACH OF THE CONSTITUTION,
LEAVING NO DOUBT OR HESITATION IN THE MIND OF THE COURT.

Before this Court determines the validity of an act of a co-equal and coordinate branch of the
Government, it bears emphasis that ingrained in our jurisprudence is the time-honored principle that
a statute is presumed to be valid. This presumption is rooted in the doctrine of separation of powers
which enjoins upon the three coordinate departments of the Government a becoming courtesy for
each other’s acts. This Court, however, may declare a law, or portions thereof, unconstitutional where
a petitioner has shown a clear and unequivocal breach of the Constitution, leaving no doubt or
hesitation in the mind of the Court.

XXXXXXXXXXXXXXXX

HAS DENR CONTROL OVER SMALL-SCALE MINING IN THE PROVINCES?

YES.

IT IS GRANTED UNDER THREE STATUTES: THE LOCAL GOVERNMENT CODE, THE PEOPLE’S SMALL
SCALE MINING ACT AND THE PHILIPPINE MINING ACT.

Control of the DENR/DENR Secretary over small-scale mining in the provinces is granted by three
statutes: (1) R.A. No. 7061 or The Local Government Code of 1991; (2) R.A. No. 7076 or the People’s

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Small Scale Mining Act of 1991; and (3) R.A. No. 7942, otherwise known as the Philippine Mining Act
of 1995.

XXXXXXXXXXXXXXX

THE DENR SECRETARY DECLARED THE APPLICATION FOR EXPLORATION PERMIT OF AMTC VALID
AND CANCELLED THE SMALL-SCALE MINING PERMITS GRANTED BY THE PROVINCIAL GOVERNOR.
WAS THE DECISION OF THE DENR SECRETARY VALID?

YES. HIS DECISION EMANATED FROM THE POWER OF REVIEW GRANTED TO THE DENR SECRETARY
UNDER R.A. NO. 7076 (PEOPLE’S SMALL SCALE MINING ACT).

Hence, the decision of the DENR Secretary, declaring that the Application for Exploration Permit of
AMTC was valid and may be given due course, and canceling the Small-Scale Mining Permits issued by
the Provincial Governor, emanated from the power of review granted to the DENR Secretary under
R.A. No. 7076 and its Implementing Rules and Regulations.

XXXXXXXXXXXXXXXXXXX

WHAT IS THE NATURE OF THE POWER OF THE DENR TO DECIDE ON THE ISSUE CONCERNING THE
VALIDITY OF THE ISSUANCE OF THE SMALL-SCALE MINING PERMITS?

IT IS A QUASI JUDICIAL FUNCTION WHICH INVOLVES THE DETERMINATION OF WHAT THE LAW IS,
AND WHAT THE LEGAL RIGHTS OF THE CONTENDING PARTIES ARE, WITH RESPECT TO THE MATTER
IN CONTROVERSY AND, ON THE BASIS THEREOF AND THE FACTS OBTAINING, THE ADJUDICATION OF
THEIR RESPECTIVE RIGHTS.

The DENR Secretary’s power to review and, therefore, decide, in this case, the issue on the validity of
the issuance of the Small-Scale Mining Permits by the Provincial Governor as recommended by the
PMRB, is a quasi-judicial function, which involves the determination of what the law is, and what the
legal rights of the contending parties are, with respect to the matter in controversy and, on the basis
thereof and the facts obtaining, the adjudication of their respective rights.53

XXXXXXXXXXXXXXXXXXXXXXXX

THEN, IS THE ACT OF THE DENR SECRETARY A SUBSTITUTION OF JUDGMENT OF THE PROVINCIAL
GOVERNOR OR CONTROL OVER HIM?

NO. IT IS JUST THE DETERMINATION OF THE RIGHTS OF AMTC.

The DENR Secretary exercises quasi-judicial function under R.A. No. 7076 and its Implementing Rules
and Regulations to the extent necessary in settling disputes, conflicts or litigations over conflicting
claims. This quasi-judicial function of the DENR Secretary can neither be equated with “substitution of
judgment” of the Provincial Governor in issuing Small-Scale Mining Permits nor “control” over the said
act of the Provincial Governor as it is a determination of the rights of AMTC over conflicting claims
based on the law.

XXXXXXXXXXXXXXXXXXXX

WHAT IS THE FUNDAMENTAL CRITERION IN DETERMINING THE LEGALITY OF A STATUTE?

32 | P a g e
THAT ALL REASONABLE DOUBTS SHOULD BE RESOLVED IN FAVOR OF THE CONSTITUTIONALITY OF
A STATUTE.

In determining whether Section 17 (b)(3)(iii) of the Local Government Code of 1991 and Section 24 of
R.A. No. 7076 are unconstitutional, the Court has been guided by )Jeltran v. The Secretary of
Health, which held:

The fundamental criterion is that all reasonable doubts should be resolved in favor of the
constitutionality of a statute. Every law has in its favor the presumption of constitutionality. For a law
to be nullified, it must be shown that there is a clear and unequivocal breach of the Constitution. The
ground for nullity must be clear and beyond reasonable doubt. Those who petition this Court to
declare a law, or parts thereof, unconstitutional must clearly establish the basis therefor. Otherwise,
the petition must fail. 55

XXXXXXXXXXXXXXXXXXX

In this case, the Court finds that the grounds raised by petitioner to challenge the constitutionality of
Section 17 (b )(3)(iii) of the Local Government Code of 1991 and Section 24 ‘of R.A. No.7076 failed to
overcome the constitutionality of the said provisions of law.

R.A. No. 8371

R.A. No. 8371—The Indigenous Peoples Rights Act (IPRA) of 1997
Republic Act (RA) No. 8371, otherwise known as the Indigenous Peoples Rights Act (IPRA) of 1997,
has been around for almost fifteen years to recognize and protect the rights of the Indigenous
People of the Philippines. More specifically, RA No. 8371 is an act to recognize, protect, and promote
the rights of indigenous cultural communities/indigenous people, creating a national commission of
indigenous people, establishing implementing mechanisms, appropriating funds therefor, and for
other purposes. In simple words, the said Act provides indigenous peoples (IPs) the right to their
ancestral domains and lands.

Indigenous peoples share distinctive traits that set them apart from the Filipino mainstream. While
the mainstream Filipinos are Christians, the indigenous people are the non-Christians. Accordingly,
the IPs “live in less accessible, marginal, mostly upland areas. They have a system of self-government
not dependent upon the laws of the central administration of the Republic of the Philippines. They
follow ways of life and customs that are perceived as different from those of the rest of the
population” (Cruz v. DENR).

Ancestral domains, based on the definition provided in RA No. 8371, transcend physical and
residential territories to include areas of spiritual, cultural and traditional practices. Ancestral
domains, as defined in the IPRA, “refer to all areas generally belonging to [Indigenous Cultural
Communities] ICCs/IPs comprising lands, inland waters, coastal areas, and natural resources therein,
held under a claim of ownership, occupied or possessed by ICCs/IPs, by themselves or through their
ancestors, communally or individually since time immemorial, continuously to the present except
when interrupted by war, force majeure or displacement by force, deceit, stealth or as a

33 | P a g e
consequence of government projects or any other voluntary dealings entered into by government
and private individuals/corporations, and which are necessary to ensure their economic, social and
cultural welfare. It shall include ancestral lands, forests, pasture, residential, agricultural and other
lands individually owned whether alienable and disposable or otherwise, hunting grounds, burial
grounds, worship areas, bodies of water, mineral and other natural resources, and lands which may
no longer be exclusively occupied by ICCs/IPs but from which they traditionally had access to for
their subsistence and traditional activities, particularly the home ranges of ICCs/IPs who are still
nomadic and/or shifting cultivators.”

Ancestral lands, which are part of ancestral domains, are defined in RA No. 8371 as lands “occupied,
possessed and utilized by individuals, families and clans who are members of the ICCs/IPs since time
immemorial, by themselves or through their predecessors-in-interest, under claims of individual or
traditional group ownership, continuously, to the present except when interrupted by war, force
majeure or displacement by force, deceit, stealth or as a consequence of government projects and
other voluntary dealings entered into by government and private individuals/corporations, including,
but not limited to, residential lots, rice terraces or paddies, private forests, swidden farms and tree
lots.”

RA No. 8371 provides IPs’ the rights to ancestral domains, which include the right of ownership, right
to develop lands and natural resources, right to stay in the territories, right in case of displacement
(temporary or permanent resettlement and right to return), right to regulate entry of migrants, right
to safe and clean air and water, right to claim parts of reservations (except those intended for
common public welfare and service) and the right to resolve conflict. For ancestral lands, in
particular, IPs have the right to transfer land/property rights to/among members of the same
ICCs/IPs and the right to redeem the property in case of transfers that raise questions on consent
given by IPs and transfers made with unjust considerations and/or prices.

IPs in the Philippines can claim ownership of their ancestral domains in three different ways, which
include the following—(1) by virtue of a native title, getting formal recognition of ownership by
acquiring a certificate of ancestral domain title (CADT); (2) certificate of ancestral land title (CALT)
from the National Commission on Indigenous Peoples (NCIP)-Ancestral Domains Office (ADO); or (3)
by securing a certificate of title by virtue of “Commonwealth Act 141, as amended, or the Land
Registration Act 496. A native title, according to RA No. 8371, “refers to pre-conquest rights to land
and domains, which, as far back as memory reaches, have been held under a claim of private
ownership by ICCs/IPs, have never been public lands and are thus indisputably presumed to have
been held that way since before the Spanish Conquest.” A CALT or CADT, on the other hand, is
granted by the government and is provided for by law to those IPs who wish to obtain these titles.
The IPRA, specifically Section 12, also states that IPs have the option to acquire certificates of title
under the provisions of the amended Commonwealth Act No. 141. This Act follows the Torrens
System of land registration and titles issued under this system are called Torrens titles.

SECTION 7. Rights to Ancestral Domains. — The rights of ownership and possession of ICCs/IPs
to their ancestral domains shall be recognized and protected. Such rights shall include:

34 | P a g e
a) Right of Ownership. — The right to claim ownership over lands, bodies of water traditionally
and actually occupied by ICCs/IPs, sacred places, traditional hunting and fishing grounds, and all
improvements made by them at any time within the domains;

b) Right to Develop Lands and Natural Resources. — Subject to Section 56 hereof, right to
develop, control and use lands and territories traditionally occupied, owned, or used; to manage and
conserve natural resources within the territories and uphold the responsibilities for future
generations; to benefit and share the profits from allocation and utilization of the natural resources
found therein; the right to negotiate the terms and conditions for the exploration of natural resources
in the areas for the purpose of ensuring ecological, environmental protection and the conservation
measures, pursuant to national and customary laws; the right to an informed and intelligent
participation in the formulation and implementation of any project, government or private, that will
affect or impact upon the ancestral domains and to receive just and fair compensation for any
damages which they may sustain as a result of the project; and the right to effective measures by the
government to prevent any interference with, alienation and encroachment upon these rights;

THE FREE AND PRIOR INFORMED CONSENT (FPIC) GUIDELINES OF 2006

Section 2. Objectives. a. Ensure genuine participation Indigenous Cultural Communities/Indigenous

People (ICCs/IPs) in decision-making through the exercise of their rights to Free and Prior informed
Consent (FPIC), whenever applicable; b. Protect the rights of ICCs/IPs in the introduction and
implementation of plan, programs, projects, activities and other undertakings that will impact upon
their ancestral domains to ensure their economic, social and cultural well-being; c. Provide the
procedure and the standards in cultural conduct of field based investigation (FBI) and FPIC process,
charging of fees; and imposition of administrative sanctions for intentional commission of
prohibited acts and omissions as hereinafter provided; and d. Ensure just and equitable partnership
in environmental management, land use, development, utilization and exploitation of resources
within ancestral domains as well as benefit sharing, between and among the concerned ICC/IP
community and the prospective investor, government agency, local government unit (LGU), non-
government organization (NGO) and other entities desiring to collaborate in such undertaking, when
FPIC is given.

Section 6. Coverage. The FPIC process to be followed will depend on the nature and extent of the
proposed plan, projects, programs or activities sought to be introduced into any ancestral domain
area, as follows:

A. The following plans, projects, programs or activities shall undergo the FPIC process prescribed in
Section 26 of this Guidelines:

1. Large-Scale development, exploitation and utilization of land, water, air, and other natural
resources within ancestral domains/lands;

2. Exploration of minerals and energy sources within ancestral domains. 3. Program, projects and
activities that may led to the displacement and/or relocation of indigenous peoples; 4. Resettlement
programs or projects by the government or any of its instrumentalities that may introduce migrants
into ancestral domains whether permanent or temporary. 5. Management of protected and
environmentally critical areas, and other related joint undertakings within ancestral domains 6.
Bioprospecting activities. 7. Industrial land use including the establishment of economic zones; 8.
Large scale tourism projects; 9. Large scale agricultural and forestry management projects; and 10.
Other activities similar or analogous to the foregoing.

35 | P a g e
B. Except those covered in the immediately preceding, paragraph the following shall governed by the
FPIC process prescribed in the Section 27 of this Guidelines:

1. Small-scale exploitation and utilization of land, water and natural resources within ancestral
domains/lands as defined under existing laws, rules and regulations of governing or regulating
agencies. 2. Commercial research undertaken by government, private person, or corporations or
foreign entities for the purpose intended directly or indirectly for commercial use, such as:
publication, documentation, paid lectures, among others. 3. Unsolicited government projects for the
delivery of socio-economic services and development including projects of charitable institutions,
and civic or non-government organizations, the direct and the primary beneficiary of which are
ICCs/IPs who own the ancestral domain, except when the same are formally coordinated with NCIP
or as coimplementor in connection with the latter’s program, projects or activities in which case, no
FBI/FPIC is necessary: Provided, That the said program or projects are validated by the NCIP to be
acceptable to the intended ICC/IP beneficiaries, either because the same conform with the
community’s ADSDPP or shall become part thereof in the future. If the owner-ICCs/IPs are not the
primary beneficiaries of the aforementioned programs or projects, compliance with the FBI/FPIC
process shall be required; 4. Activities that would affect their spiritual and religious traditions,
customs and ceremonies, including ceremonial objects or access to religious and cultural sites,
archeological explorations, digging ,and excavations unless the council of elders/leaders require the
conduct of the FPIC process prescribed under Section 26; 5. Programs /projects/activities not
requiring permits from government agencies; 6. Feasibility studies for any program, project, activity
or undertaking relative to any of those enumerated in Section 6(A); 7. Occupation of military or
organizing para military forces, establishment of temporary or permanent military facilities, or
military exercises within the domains, except when requested by concerned elders/leaders in
writing. Military operations within ancestral domain areas when made in connection with hot
pursuit operations, securing vital government installations, programs and projects against clear and
imminent danger, shall not require FPIC. The cessation of hostilities and the presence or absence of
clear and imminent danger shall be determined by the elders/leaders who may notify in writing the
occupying military/armed force to vacate the ancestral domain; and 8. Such other activities
analogous to the foregoing nature.

Didipio Earth Savers Multipurpose Association et al vs DENR Sec Elisea Gozun et al

Police Power – Eminent Domain
In 1987, Cory rolled out EO 279 w/c empowered DENR to stipulate with foreign companies when it
comes to either technical or financial large scale exploration or mining. In 1995, Ramos signed into
law RA 7942 or the Philippine Mining Act. In 1994, Ramos already signed an FTAA with Arimco Mining
Co, an Australian company. The FTAA authorized AMC (later CAMC) to explore 37,000 ha of land in
Quirino and N. Vizcaya including Brgy Didipio. After the passage of the law, DENR rolled out its
implementing RRs. Didipio petitioned to have the law and the RR to be annulled as it is
unconstitutional and it constitutes unlawful taking of property. In seeking to nullify Rep. Act No. 7942
and its implementing rules DAO 96-40 as unconstitutional, petitioners set their sight on Section 76 of
Rep. Act No. 7942 and Section 107 of DAO 96-40 which they claim allow the unlawful and unjust
“taking” of private property for private purpose in contradiction with Section 9, Article III of the 1987
Constitution mandating that private property shall not be taken except for public use and the
corresponding payment of just compensation. They assert that public respondent DENR, through the
Mining Act and its Implementing Rules and Regulations, cannot, on its own, permit entry into a private
property and allow taking of land without payment of just compensation.

36 | P a g e
Traversing petitioners’ assertion, public respondents argue that Section 76 is not a taking provision
but a valid exercise of the police power and by virtue of which, the state may prescribe regulations to
promote the health, morals, peace, education, good order, safety and general welfare of the
people. This government regulation involves the adjustment of rights for the public good and that
this adjustment curtails some potential for the use or economic exploitation of private
property. Public respondents concluded that “to require compensation in all such circumstances
would compel the government to regulate by purchase.”

ISSUE: Whether or not RA 7942 and the DENR RRs are valid.

HELD: The SC ruled against Didipio. The SC noted the requisites of eminent domain. They are;
(1) the expropriator must enter a private property;
(2) the entry must be for more than a momentary period.
(3) the entry must be under warrant or color of legal authority;
(4) the property must be devoted to public use or otherwise informally appropriated or
injuriously affected;
(5) the utilization of the property for public use must be in such a way as to oust the owner
and deprive him of beneficial enjoyment of the property.
In the case at bar, Didipio failed to show that the law is invalid. Indeed there is taking involved but it
is not w/o just compensation. Sec 76 of RA 7942 provides for just compensation as well as section 107
of the DENR RR. To wit,
Section 76. xxx Provided, that any damage to the property of the surface owner, occupant, or
concessionaire as a consequence of such operations shall be properly compensated as may be
provided for in the implementing rules and regulations.
Section 107. Compensation of the Surface Owner and Occupant- Any damage done to the property of
the surface owners, occupant, or concessionaire thereof as a consequence of the mining operations
or as a result of the construction or installation of the infrastructure mentioned in 104 above shall be
properly and justly compensated.
Further, mining is a public policy and the government can invoke eminent domain to exercise entry,
acquisition and use of private lands.

1987 Constitution, Declaration of State Policies and Principles, Article II, Sec. 22

“The State recognizes and promotes the rights of indigenous cultural communities within the
framework of national unity and development”

1987, Constitution, National Economy and Patrimony, Article XII, Section 5

“The State, subject to the provisions of this Constitution and national development policies and
programs, shall protect the rights of indigenous cultural communities to their ancestral lands to
ensure their economic, social, and cultural well being.

• The Congress may provide for the applicability of customary laws governing property rights or
relations in determining the ownership and extent of ancestral domain.

37 | P a g e
1987, Constitution, National Economy and Patrimony, Article XIII, Section 1

SECTION 1. The Congress shall give highest priority to the enactment of measures that protect and
enhance the right of all the people to human dignity, reduce social, economic, and political
inequalities, and remove cultural inequities by equitably diffusing wealth and political power for the
common good.

To this end, the State shall regulate the acquisition, ownership, use, and disposition of property and
its increments.

SECTION 6. The State shall apply the principles of agrarian reform or stewardship, whenever
applicable in accordance with law, in the disposition or utilization of other natural resources,
including lands of the public domain under lease or concession suitable to agriculture, subject to
prior rights, homestead rights of small settlers, and the rights of indigenous communities to their
ancestral lands.

1987, Constitution, National Economy and Patrimony, Article XIV, Section 17

SECTION 17. The State shall recognize, respect, and protect the rights of indigenous cultural
communities to preserve and develop their cultures, traditions, and institutions. It shall consider
these rights in the formulation of national plans and policies.

1987, Constitution, National Economy and Patrimony, Article XVI, Section 12

SECTION 12. The Congress may create a consultative body to advise the President on policies
affecting indigenous cultural communities, the majority of the members of which shall come from
such communities.

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 MANILA LAW COLLEGE
Sales St., Quiapo, Manila

ENVIRONMENTAL LAW AND

NATURAL RESOURCES
VOLUME 2

Submitted By:

EDWIN D. VILLA

Submitted To:
ATTY. RODOLFO RABAJA

Date Submitted:
May 11, 2019

39 | P a g e
 PRESIDENTIAL DECREE NO. 1067

December 31, 1976

THE WATER CODE OF THE PHILIPPINES

Article 2. The objectives of this Code are:

a. To establish the basic principles and framework relating to the

appropriation, control and conservation of water resources to achieve the

optimum development and rational utilization of these resources;

b. To define the extent of the rights and obligation of water users and

owners including the protection and regulation of such rights;

c. To adopt a basic law governing the ownership, appropriation,

utilization, exploitation, development, conservation and protection of

water resources and rights to land related thereto; and

d. To identify the administrative agencies which will enforce this Code.

Art. 3. The underlying principles of this code are:

a. All waters belong to the State.

b. All waters that belong to the state cannot be the subject to

acquisitive prescription.

c. The State may allow the use or development of waters by administration

concession.

d. The utilization, exploitation, development, conservation and protection

of water resources shall be subject to the control and regulation of the

government through the National Water Resources Council, hereinafter

referred to as the Council.

e. Preference in the use and development of waters shall consider current

usages and be responsive to the changing needs of the country.

Art. 5. The following belong to the state:

a. Rivers and their natural beds;

b. Continuous or intermittent waters of springs and brooks running in their

natural beds and the beds themselves

40 | P a g e
 c. Natural lakes and lagoons;

d. All other categories of surface waters such as water flowing over lands,

water form rainfall whether natural or artificial, and water from

agriculture runoff, seepage and drainage;

e. Atmospheric water;

f. subterranean or ground water; and

g. Seawater

Art. 6. The following waters found on private lands also belong to the States:

a. Continuous or intermittent waters rising on such lands;

b. Lakes and lagoons naturally waters rising on such lands;

c. Rain water and falling on such lands;

d. Subterranean or ground waters; and,

e. Waters in swamps and marshes.

The owner of the land where the water is found may use the same for domestic purposes without
securing a permit, provided that such use shall have be registered, when required by the Council.
The Council, however, may regulate such use when there is wastage, or in times of emergency.

DENR Administrative Order No. 99-01 January 11, 1999

Subject : Adoption of the Watershed and Ecosystems Planning Framework

In order to provide a national framework for the sustainable management of the country’s natural
resources, and in line with Philippine Agenda 21 which contains the essence of what a national
strategy for improved watershed resources management should seek to promote, the Watershed
and Ecosystems Planning and Management Framework is hereby adopted in the DENR.

The Watershed and Ecosystems Planning and Management Framework refers to the holistic,
multiple-use and sustainable management of all the resources within a spatial unit known as the
watershed.

As a topographic and hydrologic unit, a watershed can be defined as the area of land from which
rainwater can drain, as surface runoff, via a specific stream or river system to a common outlet point
which may be a dam, irrigation system or municipal/urban water supply off take point, or where the
steam/river discharges into a larger river, lake or sea. The management of these areas should
consider not only the physical resources, e.g. soil, water, timber and non-timber resources, etc., but
also the management of people living within or are affected in the area.

In this connection, all DENR offices are hereby instructed to review and realign all programs and
projects, including their budget, in accordance with the priority watershed areas of the regions.

This Order takes effect immediately.

41 | P a g e
(Sgd.) ANTONIO H. CERILLES Secretary

Republic Act 9275: The Philippine Clean Water Act

Purpose The Philippine Clean Water Act of 2004 aims to protect the country’s
water bodies from pollution from land-based sources (industries and
commercial establishments, agriculture and community/household
activities). It provides for a comprehensive and integrated strategy to
prevent and minimize pollution through a multi-sectoral and participatory
approach involving all the stakeholders
Overview  As early as 1996, monitory of the country’s rivers showed that
only 51% of the classified rivers still met the standards for their
most beneficial use. The rest were polluted from domestic,
industrial and agricultural sources
 Most studies point to the fact that domestic wastewater is the
principal cause of organic pollution (at48%) of our water bodies.
Yet, only 3% of investments in water supply and sanitation were
going to sanitation and sewage treatment.
 A recent World Bank report pointed out that Metro Manila was
second to the lowest in sewer connections among major cities in
Asia and less that 7% compared to 20% for Katmandu, Nepal and
30% for Dhaka, Bangladesh.
 Thirty-one percent (31%) of all illnesses in the country are
attributed to polluted waters. Clearly, to ensure access to clean
water for all Filipinos, it was imperative that government put
together a comprehensive strategy to protect water quality.

Features  Management of water quality will either be based on watershed,

river basis or water resources region. Water quality management
areas with similar hydrological, meteorological or geographic
conditions which affect the reaction and diffusion of pollutants in
water bodies are to be designated by the DENR in coordination
with the National Water Resources Board (NWRB)
 Management will be localized. Multi-sectoral governing boards
will be established to manage water quality issues within their
jurisdiction
 Governing Boards shall be composed of representatives of mayors
and governors as well as local government units, representatives
of relevant national government agencies, duly registered non-
government organizations, the concerned water utility sector and
the business sector.
 The governing boards will formulate strategies to coordinate
policies necessary for the effective implementation of this Act.
They will create a multi-sectoral group to establish and effect
water quality surveillance and monitoring.
 All owners or operators of facilities that discharge wastewater are
required to get a permit to discharge from the DENR or the
Laguna Lake Development Authority. Existing industries without
any permit are given 12 months from the effectivity of the

42 | P a g e
 implementing rules and regulations (IRR) promulgated pursuant
to this Act to secure a permit to discharge.
 The Department of Public Works and Highways (DPWH), in
coordination with local government units will prepare a national
program on sewage and septage management not later than 12
months from effectivity of this Act. A priority list will likewise be
prepared which will be the basis for the allotment of funds on an
annual basis by the national government for the construction and
rehabilitation of required facilities.
 Local-government units will provide the land including road right
of the way for the construction of sewage and/or septage
treatment facilities and raise funds for the operations and
maintenance of said facilities.
 The Department of Health (DOH) will formulate guidelines and
standards for the collections, treatment and disposal of sewage as
well as the guidelines for the establishment and operation of
centralized sewage treatment system. The MWSS and other
agencies mandated to provide water supply and sewerage
facilities are required to connect existing sewage lines, subject to
the payment of sewerage service charges/fees within five years
following effectivity of this Act.
 All sources of sewage and septage are required to comply with
the law.
 Anyone discharging wastewater into a water body will have to pay
a wastewater charge. This economic instrument which will be
developed in consultation with all concerned stakeholders is
expected to encourage investments in cleaner production and
pollution control technologies to reduce the amount of pollutants
generated and discharged.
 Rewards will also be given to those whose wastewater discharge
is better that the water quality criteria of the receiving body of
water. Fiscal and non-fiscal incentives will also be given to LGUs,
water districts, enterprise, private entities and individuals who
develop and undertake outstanding and innovative projects in
water quality management.
 All possible discharges are required to put up an environmental
guarantee fund (EGF) as part of their environmental management
plan. The EGF will finance the conservation of watersheds and
aquifers, and the needs of emergency response, clean up or
rehabilitation.
 Among other, the Act prohibits the following:
o Discharging or depositing any water pollutant to the
water body, or such which will impede natural flow in the
water body
o Discharging, injecting or allowing to enter into the soil,
anything that would pollute groundwater
o Operating facilities that discharge regulated water
pollutants without the valid required permits
o Disposal of potentially infectious medical waste into sea
by vessels

43 | P a g e
 o Unauthorized transport or dumping into waters or
sewage sludge or solid waste
o Transport, dumping or discharge of prohibited chemicals,
substances or pollutants listed under Toxic Chemicals,
Hazardous and Nuclear Wastes Control Act (Republic Act
No. 6969)
o Discharging regulated water pollutants without the valid
required discharge permit pursuant to this Act
o Noncompliance of the LGU with the Water Quality
Framework and Management Area Action Plan
o Refusal to allow entry, inspection and monitoring as well
as access to reports and records by the DENR in
accordance with this Act
o Refusal or failure to submit reports and/or designate
pollution control officers whenever required by the DENR
in accordance with this Act
o Directly using booster pumps in the distribution system or
tampering with the water supply in such a way to alter or
impair the water quality
o Operate facilities that discharge or allow to seep, willfully
or through grave negligence, prohibited chemicals,
substances, or pollutants listed under R.A. No. 6969, into
water bodies
o Undertake activities or development and expansion of
projects, or operating wastewater treatment/sewerage
facilities in violation of P.D. 1586 and its IRR.
 Anyone who commits prohibited acts such as discharging
untreated wastewater into any water body will be fined for every
day of violation, the amount of not less than Php 10,000 but not
more than Php 200,000. Failure to undertake clean-up operations
willfully shall be punished by imprisonment of not less than two
years and not more than four years. This also includes fine of not
less than Php 50,000 and not more that Php 100,000 per day of
violation. Failure or refusal to clean up which results in serious
injury or loss of life or lead to irreversible water contamination of
surface, ground, coastal and marine water shall be punished with
imprisonment of not less than 6 years and 1 day and not more
than 12 years and a fine of Php 500,000/day for each day the
contamination or omission continues. In cases of gross violation,
fine of not less that Php 500,00 but not more than Php 3,000,000
will be imposed for each day of violation. Criminal charges may
also be filed.

National Sewerage and Septage Program

Clean Water Act and NSSMP

Clean Water Act (2004) mandates DPWH to prepare the National Sewerage and Septage
Management Program (NSSMP) and was approved by the NEDA Board in May 30, 2010. The goal
of NSSMP is to improve water quality and protect public health in urban areas of the Philippines by

44 | P a g e
2020. In particular, all LGU’s should have developed Septage Management System and the 17
highly urbanized cities (HUC’s) have developed sewerage system. A 40% NG Cost Share is available
for sewerage projects of 17 HUCs outside Metro Manila.

Proposed Amendments to NSSMP

DPWH requested for Amendments to NSSMP. Amendments aims to realign the program to where
demand is and where support is needed: 1. Broaden the scope for the NG Cost Share to include
septage projects; 2. Expand eligibility to non-HUCs and municipalities; 3. Allow WDs to directly apply
for the NG Cost Share. The Application for amendments was approved by the NEDA Infracom on
October 27, 2014 but subject to NEDA Board Approval.

NG Cost Share For Sewerage Projects: 40% for all LGUs and WDs Will benefit smaller
cities/municipalities and enable them to undertake necessary projects to protect the environment.
For Septage Projects: 40% for all LGUs and WDs Septage projects are capable of full cost recovery
within 5-7 years. NG Cost Share of 40% is meant to serve as a time-bound incentive (6 years to go)
to encourage ready and nearready projects to move forward quickly. Subsidy should lead to lower
user fees, enabling more political support for septage projects.

Institutional Arrangement Roles/Mandates

LGUs • Prepare and implement contingency plans and other measures including relocation,
whenever necessary. • Prepare listing of sewerage, septage and combined sewerage-septage
projects. • Shall appropriate the necessary land, including the required rights-of-way/road access to
the land for the construction of the sewage and/or septage treatment plant facilities. • LGU may
raise funds to subsidize necessary expenses for the operation and maintenance of sewerage
treatment or septage facility.

LGUs may enact ordinances adjusting local property taxes or imposing a service fee system to meet
necessary expenses for the operation and maintenance of sewerage treatment or septage
management facility. • Submit to DPWH a priority listing of their projects based on realistic
assessment of resources.

DPWH • Lead implementation agency at the national level • Policy Making and Planning
implementation • Encourage LGUs to participate in the NSSMP • Ensuring WD or Operators have a
compliance plan and system designed accordingly • Reviewing and prioritizing proposed LGU
infrastructure projects • Entering into MOA with LGU for 40 % national government cost share •
Monitoring and evaluating progress toward achieving targets • Submitting annual report to NSSMP
Committee

Water Districts • Coordinate with LGUs in developing sewerage/sanitation plans • Prepare feasibility
studies in relation to sewerage/sanitation projects • Manage and operate water collection,
treatment and disposal facilities • Persuade buildings to be connected to the sewer located less than
35m • Collect the prescribe rates and charges

Connect sewage lines to sewerage systems • Coordinate with NSSMP Office for information on
NSSMP incentives (financial, technical assistance, etc.) and process of availing of incentives • Report
progress to the NSSMP Office

45 | P a g e
Fisheries Code of 1998

Republic Act (RA) 8550 is the response to address the trend of blind resource exploitation. This Act,
otherwise known as the Fisheries Code of 1998, is the governing law in Philippine fisheries to
address the interconnected issues of resource degradation and unrelenting poverty among
municipal fishers. It provides for a national policy on sustainable use of fishery resources to meet the
growing food needs of the population. It calls for management of fishery and aquatic resources in a
manner that is consistent with the concept of an integrated coastal area management in specific
natural fishery management areas.

The Code also promotes and protects the rights of municipal fisherfolk, especially in the preferential
use of municipal waters. Resident fisherfolks and their cooperatives/organizations are given the
priority to exploit the expanded 15-kilometer limit of municipal waters. It further mandates the
government to promote the general welfare of municipal fishers through provision of support
services and fair labor practices.

The Fisheries Code was passed by the Philippine Congress on 19 February 1998 and was
subsequently approved by the Office of the President on 25 February 1998. The law became
effective on 23 June 1998. It contains nine (9) chapters with provisions on utilization, management,
development, conservation and allocation system of fisheries and aquatic resources; reconstitution
of the Bureau of Fisheries and Aquatic Resources and creation of the Fisheries and Aquatic
Resources Management Councils; fishery reserves, refuge and sanctuaries; and research and
development. One chapter each is dedicated for prohibitions and penalties; general provisions;
transitory and final provisions.

Efforts to address resource degradation

Overfished or in danger of being overfished areas are established as fish refuge and marine
sanctuaries. These are designated areas where fishing and other forms of activities that may damage
the ecosystem are regulated, restricted or prohibited, depending on their degree of harm. The law
also provides that at least 15% of the total coastal areas in each municipality should be designated as
fishery refuge and sanctuaries to establish more fish sanctuaries and marine protected areas.

Participatory management through various levels of Fisheries and Aquatic Resources Management
Councils (FARMCs) is enhanced and institutionalized by the law. FARMCs are established in the
national level and all municipalities/cities abutting municipal waters to act as an advisory and
recommendatory body and to assist in the enforcement of ordinances and other fishery laws, rules
and regulations. The combination of organized fishers and local government units (LGUs) is intended
to serve as a venue for close collaboration among civil society groups in the management of
contiguous resources.

Efforts to address poverty

Resident municipal fisherfolk and their cooperatives/organizations are given preferential fishing
privileges in the municipal waters which include not only streams, lakes and rivers within the
municipality/city but also marine waters within the 15-kilometer zone from the coastline. Small and
medium commercial fishing vessels may be allowed but only within the 10.1 to 15-kilometer zone of
municipal waters and under stringent condition through an ordinance. In the same way, the granting
of Fishpond Lease Agreements (FLAs) gives preference to municipal fisherfolk and their organization
as well as in the operation of fish pens, fish cages, fish traps and other structures.

46 | P a g e
Furthermore, the Code mandates the government to provide support services in the form of
research and extension, credit, post-harvest facilities, infrastructures, fisherfolk settlements and
entitlement to same privileges as those accorded to other workers under the Philippine Labor Code.

Conclusion

Poverty in the fisheries sector is attributable to low productivity of aquatic resources brought about
by degradation, stock depletion and resource use conflict in the coastal waters. The Philippine
Fisheries Code deems the conservation and protection of the fishery resources imperative to
improve productivity. Various processes to promote sustainable fisheries which include participatory
management through FARMCs and establishment of fish refuge, sanctuaries and marine protected
areas are stipulated in the Code. The extent of jurisdiction of the local government units (LGUs) over
municipal waters is clarified as well as the operation of commercial vessels in municipal waters. An
extensive list of penal laws is also codified to facilitate enforcement and local legislation. However,
the remaining challenge, albeit a pivotal one to ensure sustainable fishery resource management,
concerns strict enforcement of the provisions of the Fisheries Code.

Aquaculture

SECTION 45. Disposition of Public Lands for Fishery Purposes. — Public lands such as tidal swamps,
mangroves, marshes, foreshore lands and ponds suitable for shery operations shall not be disposed
or alienated. Upon effectivity of this Code, FLA may be issued for public lands that may be declared
available for shpond development primarily to qualied sherfolk cooperatives/associations: Provided,
however, That upon the expiration of existing FLAs the current lessees shall be given priority and be
entitled to an extension of twenty-ve (25) years in the utilization of their respective leased areas.
Thereafter, such FLAs shall be granted to any Filipino citizen with preference, primarily to qualied
sherfolk cooperatives/associations as well as small and medium enterprises as dened under Republic
Act No. 8289: Provided, further, That the Department shall declare as reservation, portions of
available public lands certied as suitable for shpond purposes for sh sanctuary, conservation, and
ecological purposes: Provided, nally, That two (2) years after the approval of this Act, no sh pens or
sh cages or sh traps shall be allowed in lakes.

SECTION 46. Lease of Fishponds. — Fishpond leased to qualied persons and sherfolk
organizations/cooperatives shall be subject to the following conditions:

a. Areas leased for shpond purposes shall be no more than 50 hectares for individuals and 250
hectares for corporations or sherfolk organizations;

b. The lease shall be for a period of twenty-ve (25) years and renewable for another twenty-ve
(25) years: Provided, That in case of the death of the lessee, his spouse and/or children, as his heirs,
shall have preemptive rights to the unexpired term of his Fishpond Lease Agreement subject to the
same terms and conditions provided herein provided that the said heirs are qualied;

c. Lease rates for shpond areas shall be determined by the Department: Provided, That all
fees collected shall be remitted to the National Fisheries Research and Development Institute and
other qualied research institutions to be used for aquaculture research development;

d. The area leased shall be developed and producing on a commercial scale within three (3)
years from the approval of the lease contract: Provided, however, That all areas not fully producing
within ve (5) years from the date of approval of the lease contract shall automatically revert to the
public domain for reforestation;

47 | P a g e
e. The shpond shall not be subleased, in whole or in part, and failure to comply with this
provision shall mean cancellation of FLA;

f. The transfer or assignment of rights to FLA shall be allowed only upon prior written
approval of the Department;

g. The lessee shall undertake reforestation for river banks, bays, streams, and seashore
fronting the dike of his shpond subject to the rules and regulations to be promulgated thereon; and

h. The lessee shall provide facilities that will minimize environmental pollution, i.e., settling
ponds, reservoirs, etc: Provided, That failure to comply with this provision shall mean cancellation of
FLA.

SECTION 47. Code of Practice for Aquaculture. — The Department shall establish a code of practice
for aquaculture that will outline general principles and guidelines for environmentallysound design
and operation to promote the sustainable development of the industry. Such Code shall be
developed through a consultative process with the DENR, the shworkers, FLA holders, shpond
owners, sherfolk cooperatives, small-scale operators, research institutions and the academe, and
other potential stakeholders. The Department may consult with specialized international
organizations in the formulation of the code of practice.

SECTION 48. Incentives and Disincentives for Sustainable Aquaculture Practices. — The Department
shall formulate incentives and disincentives, such as, but not limited to, efuent charges, user fees
and negotiable permits, to encourage compliance with the environmental standards and to promote
sustainable management practices.

SECTION 49. Reversion of All Abandoned, Undeveloped or Underutilized Fishponds. — The DENR, in
coordination with the Department, LGUs, other concerned agencies and FARMCs shall determine
which abandoned, underdeveloped or underutilized shponds covered by FLAs can be reverted to
their original mangrove state and after having made such determination shall take all steps
necessary to restore such areas in their original mangrove state.

SECTION 50. Absentee Fishpond Lease Agreement Holders. — Holders of shpond lease agreements
who have acquired citizenship in another country during the existence of the FLA shall have their
lease automatically cancelled and the improvements thereon to be forfeited in favor of the
government and disposed of in accordance with rules and regulations promulgated thereon.

SECTION 51. License to Operate Fish Pens, Fish Cages, Fish Traps and Other Structures for the
Culture of Fish and Other Fishery Products. — Fish pens, sh cages, sh traps and other structures for
the culture of sh and other shery products shall be constructed and shall operate only within
established zones duly designated by LGUs in consultation with the FARMCs concerned consistent
with national sheries policies after the corresponding licenses thereof have been secured. The area
to be utilized for this purpose for individual person shall be determined by the LGUs in consultation
with the concerned FARMC: Provided, however, That not over ten percent (10%) of the suitable
water surface area of all lakes and rivers shall be allotted for aquaculture purposes like sh pens, sh
cages and sh traps; and the stocking density and feeding requirement which shall be controlled and
determined by its carrying capacity: Provided, further, That sh pens and sh cages located outside
municipal waters shall be constructed and operated only within sh pen and sh cage belts designated
by the Department and after corresponding licenses therefor have been secured and the fees
thereof paid.

48 | P a g e
 Exclusive Economic Zone
SECTION 2. Declaration of Policy. — It is hereby declared the policy of the State:

a. to achieve food security as the overriding consideration in the utilization, management,

development, conservation and protection of shery resources in order to provide the food needs of
the population. A exible policy towards the attainment of food security shall be adopted in response
to changes in demographic trends for sh, emerging trends in the trade of sh and other aquatic
products in domestic and international markets, and the law of supply and demand;

b. to limit access to the shery and aquatic resources of the Philippines for the exclusive use and
enjoyment of Filipino citizens;

c. to ensure the rational and sustainable development, management and conservation of the shery
and aquatic resources in Philippine waters including the Exclusive Economic Zone (EEZ) and in the
adjacent high seas, consistent with the primordial objective of maintaining a sound ecological
balance, protecting and enhancing the quality of the environment;

d. to protect the rights of sherfolk, especially of the local communities with priority to municipal
sherfolk, in the preferential use of the municipal waters. Such preferential use, shall be based on,
but not limited to, Maximum Sustainable Yield (MSY) or Total Allowable Catch (TAC) on the basis of
resources and ecological conditions, and shall be consistent with our commitments under
international treaties and agreements;

e. to provide support to the shery sector, primarily to the municipal sherfolk, including women and
youth sectors, through appropriate technology and research, adequate nancial, production,
construction of post-harvest facilities, marketing assistance, and other services. The protection of
municipal sherfolk against foreign intrusion shall extend to offshore shing grounds. Fishworkers shall
receive a just share for their labor in the utilization of marine and shery resources;

f. to manage shery and aquatic resources, in a manner consistent with the concept of an integrated
coastal area management in specic natural shery management areas, appropriately supported by
research, technical services and guidance provided by the State; and

g. to grant the private sector the privilege to utilize shery resources under the basic concept that
the grantee, licensee or permittee thereof shall not only be a privileged beneciary of the State but
also active participant and partner of the Government in the sustainable development,
management, conservation and protection of the shery and aquatic resources of the country.

The state shall ensure the attainment of the following objectives of the shery sector:

1. Conservation, protection and sustained management of the country’s shery and aquatic
resources;

2. Poverty alleviation and the provision of supplementary livelihood among municipal sherfolk;

3. Improvement of productivity of aquaculture within ecological limits;

4. Optimal utilization of offshore and deep-sea resources; and

5. Upgrading of post-harvest technology.

49 | P a g e
SECTION 3. Application of its Provisions. — The provisions of this Code shall be enforced in:

a. all Philippine waters including other waters over which the Philippines has sovereignty and
jurisdiction, and the country’s 200-nautical mile Exclusive Economic Zone (EEZ) and continental shelf;

b. all aquatic and shery resources whether inland, coastal or offshore shing areas, including but not
limited to shponds, shpens/cages; and

c. all lands devoted to aquaculture, or businesses and activities relating to shery, whether private or
public lands

SEA LION FISHING CORPORATION VS. PEOPLE OF THE PHILIPPINES

G.R. No. 172678, March 23, 2011

FACTS:
In response to fishermen's report of poaching off Mangsee Island in Balabac, Palawan, a combined
team of Philippine Marines, Coast Guard and barangay officials conducted search and seizure
operations therein. There they found F/V Sea Lion anchored three nautical miles northwest
of Mangsee Island. Beside it were five boats and a long fishing net already spread over the water.
The team boarded the vessel and apprehended her captain, a Filipino, and a crew composed of
three Filipinos and three Chinese. Also arrested were 17 Chinese fishermen aboard F/V Sea Lion. The
Provincial Prosecutor of Palawan dismissed the charges except those against the 17 Chinese
fishermen.

This was after it was found out that the crew of F/V Sea Lion did not assent to the illegal acts of said
17 Chinese fishermen who were rescued by the crew of the F/V Sea Lion from a distressed Chinese
vessel. The prosecutor concluded that the crew, unarmed, outnumbered and hampered by language
barrier, acted only out of uncontrollable fear of imminent danger to their lives and property which
hindered them from asserting their authority over these Chinese nationals. With the crew of F/V
Sea Lion now exculpated, F/V Sea Lion was thus, recommended to be released to the petitioner
upon proper showing of evidence of its ownership of the aforesaid vessel. Petitioner, however,
failed to act in accordance with said Resolutions. The Seventeen (17) accused were found guilty
beyond reasonable doubt as principals for the crime of Violation of Section 88, sub-par. (3) of R.A.
8550 and sentenced them to suffer an imprisonment of FIVE (5) YEARS TO SIX (6) YEARS, SIX (6) MONTHS
AND SEVEN (7) DAYS. The Fishing Vessel F/V Sea Lion I as well as the fishing paraphernalia and equipments
used by the accused in committing the crime was ordered confiscated in favor of the government.
The petitioner filed a Motion for Reconsideration to delete from said Sentences the confiscation of
F/V Sea Lion but was denied by RTC and CA, thus this petitioner was filed. Petitioner contends that
F/V Sea Lion should be released to it because it is the registered owner of said vessel and her captain
and crew members were not among those accused of and convicted invoking Article 45 of the
Revised Penal Code. The OSG contends that even if Article 45 of the Revised Penal Code is
applicable, still the present petition must fail due to petitioner's failure to present its third-party
claim at the earliest opportunity.

ISSUE:
Whether or not the confiscation of F/V Sea Lion was valid.

HELD:
YES. The petition has no merit. The CA did not find either lack or error of jurisdiction or grave abuse of
discretion. There was no jurisdictional error because based on the Informations, the offenses were
committed within the territorial jurisdiction of the trial court. The penalties imposable under the law

50 | P a g e
were also within its jurisdiction. As a necessary consequence, the trial court had the authority to
determine how the subject fishing vessel should be disposed of. Likewise, no grave abuse of
discretion attended the issuance of the trial court's order to confiscate F/V Sea Lion considering the
absence of evidence showing that said vessel is owned by a third party

Evidently, the remedial relief pursued by the petitioner was infirm and improper. Significantly, the
lack of any factual basis for the third-party claim of ownership was not cured at all when the
petitioner filed its motion for reconsideration before the trial court. At that point, evidence should
have been adduced to support the petitioner's claim (so that a new trial or reopening of the trial on
the confiscation aspect should have been prayed for, rather than a mere motion
for reconsideration.) There is firstly the factual issue - to be proved by proper evidence in order to be
properly considered by the court - that the vessel is owned by a third party other than the
accused. Article 45 required too that proof be adduced that the third party is not liable for the
offense.

After the admission by the accused through their guilty plea that the vessel had been used in the
commission of a crime, we believe and so hold that this additional Article 45 requirement cannot be
simply inferred from the mere fact that the alleged owner is not charged in the same case before the
court. Given the absence of any admissible evidence of third-party ownership and the failure to
comply with the additional Article 45 requirement, the court's order to confiscate the F/V Sea Lion
pursuant to Article 87 of R.A. No. 8550 cannot be incorrect to the point of being an act in grave
abuse of discretion.

Shell Philippines vs. Jalos G.R. No. 179918, Sept. 8, 2010 State Immunity

FACTS:

Petitioner Shell Philippines Exploration B.V. and the Republic of the Philippines entered into Service
Contract 38 for the exploration and extraction of petroleum in northwestern Palawan. Two years
later, Shell discovered natural gas in the Camago-Malampaya area and pursued its development of
the well under the Malampaya Natural Gas Project. This entailed the construction and installation of
a pipeline, which spanned 504 kms. and crossed the Oriental Mindoro Sea, from Shell’s production
platform to its gas processing plant in Batangas. On May 19, 2003, respondents, 78 individuals,
claiming that they were all subsistence fishermen from the coastal barangay of Bansud, Oriental
Mindoro, filed a complaint for damages against Shell on the ground that their livelihood was
adversely affected the construction and operation of Shell’s natural gas pipeline. Shell moved for
dismissal of the complaint alleging that the Pollution Adjudication Board (PAB), not the trial court,
has primary jurisdiction over pollution cases and actions for related damages and that it could not be
sued pursuant to the doctrine of state immunity without the State’s consent on the basis that it
merely serves as an agent of the Philippine government in the development of the Malampaya gas
reserves through Service Contract 38.

The RTC dismissed the complaint ruling that it should be brought first to the PAB. CA reversed RTC’s
order upon respondent’s petition for certiorari. Shell moved for reconsideration of the CA’s decision
but the same was denied. Hence, Shell filed this petition for review under Rule 45.

51 | P a g e
ISSUE:

Can Shell invoke state immunity, as agent of the Republic of the Philippines?

RULING:

No. Shell cannot invoke state immunity because it is not an agent of the Republic of the Philippines.
It is just a service contractor for the exploration and development of one of the country’s natural gas
reserves. While the Republic appointed Shell as the exclusive party to conduct petroleum operations
in the Camago-Malampayo area under the State’s full control and supervision, it does not follow that
Shell has become the State’s “agent” within the meaning of the law.

An agent is a person who binds himself to render some service or to do something in representation
or on behalf of another, with the consent or authority of the latter. The Essence of an agency is the
agent’s ability to represent his principal and bring about business relations between the latter and
third persons.

Shell’s primary obligation under the Service Contract 38 is not to represent the Philippine
government for the purpose of transacting business with third persons, rather, its contractual
commitment is to develop and manage petroleum operations on behalf of the state. Hence, Shell is
not an agent of the Philippine government but a provider of services, technology and financing for
the Malampaya Natural Gas Project; it is not immune from suit and it may be sued for claims even
without the State’s consent. And as evident in the stipulations agreed upon by the parties under
Service Contract 38, the Phil. Government recognized that Shell could be sued in relation to the
project.

Land reclamation, usually known as reclamation, and also known as land fill

is the process of creating new land from ocean, riverbeds, or lake beds. The land reclaimed is known
as reclamation ground or land fill.
In a number of other jurisdictions, including parts of the United States,[1] the term "reclamation" can
refer to returning disturbed lands to an improved state. In Alberta, Canada, for example, reclamation
is defined by the provincial government as "The process of reconverting disturbed land to its former
or other productive uses."[2] In Oceania it is frequently referred to as land rehabilitation.
Land reclamation can be achieved with a number of different methods. The most simple method
involves simply filling the area with large amounts of heavy rock and/or cement, then filling with clay
and dirt until the desired height is reached. The process is called "infilling"[3] and the material used to
fill the space is generally called "infill".[4][5] Draining of submerged wetlands is often used to reclaim
land for agricultural use. Deep cement mixing is used typically in situations in which the material
displaced by either dredging or draining may be contaminated and hence needs to be contained.
Land dredging is also another method of land reclamation. It is the removal of sediments and debris
from the bottom of a body of water. It is commonly used for maintaining reclaimed land masses as
sedimentation, a natural process, fills channels and harbors naturally.

52 | P a g e
 Chavez v PEA and AMARI G.R. No. 133250. July 9, 2002.

Facts: On February 4, 1977, then President Ferdinand E. Marcos issued Presidential Decree No. 1084
creating PEA. PD No. 1084 tasked PEA "to reclaim land, including foreshore and submerged areas,"
and "to develop, improve, acquire, lease and sell any and all kinds of lands." On the same date, then
President Marcos issued Presidential Decree No. 1085 transferring to PEA the "lands reclaimed in
the foreshore and offshore of the Manila Bay" under the Manila-Cavite Coastal Road and
Reclamation Project (MCCRRP).

On January 19, 1988, then President Corazon C. Aquino issued Special Patent No. 3517, granting
and transferring to PEA "the parcels of land so reclaimed under the Manila-Cavite Coastal Road and
Reclamation Project (MCCRRP) containing a total area of one million nine hundred fifteen thousand
eight hundred ninety four (1,915,894) square meters." Subsequently, on April 9, 1988, the Register
of Deeds of the Municipality of Parañaque issued Transfer Certificates of Title Nos. 7309, 7311, and
7312, in the name of PEA, covering the three reclaimed islands known as the "Freedom Islands"
located at the southern portion of the Manila-Cavite Coastal Road, Parañaque City.

PEA and AMARI entered into the JVA through negotiation without public bidding. On April 28,
1995, the Board of Directors of PEA, in its Resolution No. 1245, confirmed the JVA. On June 8, 1995,
then President Fidel V. Ramos, through then Executive Secretary Ruben Torres, approved the JVA.

The Senate Committees reported the results of their investigation in Senate Committee Report
No. 560 dated September 16, 1997. Among the conclusions of their report are: (1) the reclaimed
lands PEA seeks to transfer to AMARI under the JVA are lands of the public domain which the
government has not classified as alienable lands and therefore PEA cannot alienate these lands; (2)
the certificates of title covering the Freedom Islands are thus void, and (3) the JVA itself is illegal.

On December 5, 1997, then President Fidel V. Ramos issued Presidential Administrative Order No.
365 creating a Legal Task Force to conduct a study on the legality of the JVA in view of Senate
Committee Report No. 560. The members of the Legal Task Force were the Secretary of Justice, the
Chief Presidential Legal Counsel, and the Government Corporate Counsel. The Legal Task Force
upheld the legality of the JVA, contrary to the conclusions reached by the Senate Committees.

On April 27, 1998, petitioner Frank I. Chavez ("Petitioner" for brevity) as a taxpayer, filed the
instant Petition for Mandamus with Prayer for the Issuance of a Writ of Preliminary Injunction and
Temporary Restraining Order. Petitioner contends the government stands to lose billions of pesos in
the sale by PEA of the reclaimed lands to AMARI. Petitioner prays that PEA publicly disclose the
terms of any renegotiation of the JVA, invoking Section 28, Article II, and Section 7, Article III, of the
1987 Constitution on the right of the people to information on matters of public concern.

Due to the approval of the Amended JVA by the Office of the President, petitioner now prays that
on "constitutional and statutory grounds the renegotiated contract be declared null and void."

Issue: The issues raised by petitioner, PEA and AMARI are as follows:
1. Whether the reliefs prayed for are moot and academic because of subsequent events;
2. Whether the petition should be dismissed for failing to observe the principle of governing the
heirarchy of courts;
3. Whether the petition should be dismissed for non-exhaustion of administrative remedies;
4. Whether petitioner has locus standi;
5. Whether the constitutional right to information includes information on on-going neogtiations

53 | P a g e
BEFORE a final agreement;
6. Whether the stipulations in the amended joint venture agreement for the transfer to AMARI of
certain lands, reclaimed and still to be reclaimed violate the 1987 Constitution; and
7. Whether the Court has jurisdiction over the issue whether the amended JVA is grossly
disadvantageous to the government

Held: 1. We rule that the signing and of the Amended JVA by PEA and AMARI and its approval by the
President cannot operate to moot the petition and divest the Court of its jurisdiction.

PEA and AMARI have still to implement the Amended JVA. The prayer to enjoin the signing of the
Amended JVA on constitutional grounds necessarily includes preventing its implementation if in the
meantime PEA and AMARI have signed one in violation of the Constitution. Petitioner's principal
basis in assailing the renegotiation of the JVA is its violation of the Section 3, Article XII of the
Constitution, which prohibits the government from alienating lands of the public domain to private
corporations. The Amended JVA is not an ordinary commercial contract but one which seeks to
transfer title and ownership to 367.5 hectares of reclaimed lands and submerged areas of Manila
Bay to a single private corporation.

Also, the instant petition is a case of first impression being a wholly government owned
corporation performing public as well as proprietary functions. All previous decisions of the Court
involving Section 3, Article XII of the 1987 Constitution, or its counterpart provision in the 1973
Constitution, covered agricultural lands sold to private corporations which acquired the lands from
private parties.

Lastly, there is a need to resolve immediately the constitutional issue raised in this petition
because of the possible transfer at any time by PEA to AMARI of title and ownership to portions of
the reclaimed lands. Under the Amended JVA, PEA is obligated to transfer to AMARI the latter's
seventy percent proportionate share in the reclaimed areas as the reclamation progresses, The
Amended JVA even allows AMARI to mortgage at any time the entire reclaimed area to raise
financing for the reclamation project.

2. The instant case, however, raises constitutional issues of transcendental importance to the
public. The Court can resolve this case without determining any factual issue related to the case.
Also, the instant case is a petition for mandamus which falls under the original jurisdiction of the
Court under Section 5, Article VIII of the Constitution. We resolve to exercise primary jurisdiction
over the instant case.

3. PEA was under a positive legal duty to disclose to the public the terms and conditions for the
sale of its lands. The law obligated PEA make this public disclosure even without demand from
petitioner or from anyone. PEA failed to make this public disclosure because the original JVA, like the
Amended JVA, was the result of a negotiated contract, not of a public bidding. Considering that PEA
had an affirmative statutory duty to make the public disclosure, and was even in breach of this legal
duty, petitioner had the right to seek direct judicial intervention.

The principle of exhaustion of administrative remedies does not apply when the issue involved is
a purely legal or constitutional question. The principal issue in the instant case is the capacity of
AMARI to acquire lands held by PEA in view of the constitutional ban prohibiting the alienation of
lands of the public domain to private corporations. We rule that the principle of exhaustion of
administrative remedies does not apply in the instant case.

The petitioner has standing to bring this taxpayer's suit because the petition seeks to compel PEA

54 | P a g e
to comply with its constitutional duties. There are two constitutional issues involved here. First is the
right of citizens to information on matters of public concern. Second is the application of a
constitutional provision intended to insure the equitable distribution of alienable lands of the public
domain among Filipino Citizens.
The thrust of the second issue is to prevent PEA from alienating hundreds of hectares of alienable
lands of the public domain in violation of the Constitution, compelling PEA to comply with a
constitutional duty to the nation.

4. Ordinary taxpayers have a right to initiate and prosecute actions questioning the validity of acts
or orders of government agencies or instrumentalities, if the issues raised are of 'paramount public
interest,' and if they 'immediately affect the social, economic and moral well being of the people.'

We rule that since the instant petition, brought by a citizen, involves the enforcement of
constitutional rights — to information and to the equitable diffusion of natural resources — matters
of transcendental public importance, the petitioner has the requisite locus standi.

5. The State policy of full transparency in all transactions involving public interest reinforces the
people's right to information on matters of public concern. This State policy is expressed in Section
28, Article II of the Constitution, thus: “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."

Contrary to AMARI's contention, the commissioners of the 1986 Constitutional Commission

understood that the right to information "contemplates inclusion of negotiations leading to the
consummation of the transaction." Certainly, a consummated contract is not a requirement for the
exercise of the right to information. Otherwise, the people can never exercise the right if no contract
is consummated, and if one is consummated, it may be too late for the public to expose its defects.

Requiring a consummated contract will keep the public in the dark until the contract, which may
be grossly disadvantageous to the government or even illegal, becomes a fait accompli.

However, the right to information does not compel PEA to prepare lists, abstracts, summaries and
the like relating to the renegotiation of the JVA. 34 The right only affords access to records,
documents and papers, which means the opportunity to inspect and copy them. One who exercises
the right must copy the records, documents and papers at his expense. The exercise of the right is
also subject to reasonable regulations to protect the integrity of the public records and to minimize
disruption to government operations, like rules specifying when and how to conduct the inspection
and copying.

6. Article 339 of the Civil Code of 1889 defined property of public dominion as follows:
"Art. 339. Property of public dominion is —
1. That devoted to public use, such as roads, canals, rivers, torrents, ports and bridges
constructed by the State, riverbanks, shores, roadsteads, and that of a similar character;
2. That belonging exclusively to the State which, without being of general public use, is
employed in some public service, or in the development of the national wealth, such as walls,
fortresses, and other works for the defense of the territory, and mines, until granted to private
individuals.

Property devoted to public use referred to property open for use by the public. In contrast,
property devoted to public service referred to property used for some specific public service and
open only to those authorized to use the property.Property of public dominion referred not only to

55 | P a g e
property devoted to public use, but also to property not so used but employed to develop the
national wealth. This class of property constituted property of public dominion although employed
for some economic or commercial activity to increase the national wealth.

"Art. 341. Property of public dominion, when no longer devoted to public use or to the defense
of the territory, shall become a part of the private property of the State." This provision, however,
was not self-executing. The legislature, or the executive department pursuant to law, must declare
the property no longer needed for public use or territorial defense before the government could
lease or alienate the property to private parties.

Act No. 2874 of the Philippine Legislature

Sec. 55. Any tract of land of the public domain which, being neither timber nor mineral land,
shall be classified as suitable for residential purposes or for commercial, industrial, or other
productive purposes other than agricultural purposes, and shall be open to disposition or
concession, shall be disposed of under the provisions of this chapter, and not otherwise.

The rationale behind this State policy is obvious. Government reclaimed, foreshore and marshy
public lands for non-agricultural purposes retain their inherent potential as areas for public service.
This is the reason the government prohibited the sale, and only allowed the lease, of these lands to
private parties. The State always reserved these lands for some future public service.

However, government reclaimed and marshy lands, although subject to classification as

disposable public agricultural lands, could only be leased and not sold to private parties because of
Act No. 2874.

The 1987 Constitution continues the State policy in the 1973 Constitution banning private
corporations from acquiring any kind of alienable land of the public domain. Like the 1973
Constitution, the 1987 Constitution allows private corporations to hold alienable lands of the public
domain only through lease. As in the 1935 and 1973 Constitutions, the general law governing the
lease to private corporations of reclaimed, foreshore and marshy alienable lands of the public
domain is still CA No. 141.

Without the constitutional ban, individuals who already acquired the maximum area of alienable
lands of the public domain could easily set up corporations to acquire more alienable public lands.
An individual could own as many corporations as his means would allow him. An individual could
even hide his ownership of a corporation by putting his nominees as stockholders of the
corporation. The corporation is a convenient vehicle to circumvent the constitutional limitation on
acquisition by individuals of alienable lands of the public domain.

PD No. 1085, coupled with President Aquino's actual issuance of a special patent covering the
Freedom Islands, is equivalent to an official proclamation classifying the Freedom Islands as
alienable or disposable lands of the public domain. Being neither timber, mineral, nor national park
lands, the reclaimed Freedom Islands necessarily fall under the classification of agricultural lands of
the public domain. Under the 1987 Constitution, agricultural lands of the public domain are the only
natural resources that the State may alienate to qualified private parties. All other natural resources,
such as the seas or bays, are "waters . . . owned by the State" forming part of the public domain, and
are inalienable pursuant to Section 2, Article XII of the 1987 Constitution.

In short, DENR is vested with the power to authorize the reclamation of areas under water, while
PEA is vested with the power to undertake the physical reclamation of areas under water whether
directly or through private contractors. DENR is also empowered to classify lands of the public

56 | P a g e
domain into alienable or disposable lands subject to the approval of the President. On the other
hand, PEA is tasked to develop, sell or lease the reclaimed alienable lands of the public domain.

Clearly, the mere physical act of reclamation by PEA of foreshore or submerged areas does not
make the reclaimed lands alienable or disposable lands of the public domain, much less patrimonial
lands of PEA. Likewise, the mere transfer by the National Government of lands of the public domain
to PEA does not make the lands alienable or disposable lands of the public domain, much less
patrimonial lands of PEA.

There is no express authority under either PD No. 1085 or EO No. 525 for PEA to sell its reclaimed
lands. PD No. 1085 merely transferred "ownership and administration" of lands reclaimed from
Manila Bay to PEA, while EO No. 525 declared that lands reclaimed by PEA "shall belong to or be
owned by PEA." PEA's charter, however, expressly tasks PEA "to develop, improve, acquire,
administer, deal in, subdivide, dispose, lease and sell any and all kinds of lands . . . owned, managed,
controlled and/or operated by the government." 87 (Emphasis supplied) There is, therefore,
legislative authority granted to PEA to sell its lands, whether patrimonial or alienable lands of the
public domain. PEA may sell to private parties its patrimonial properties in accordance with the PEA
charter free from constitutional limitations. The constitutional ban on private corporations from
acquiring alienable lands of the public domain does not apply to the sale of PEA's patrimonial lands.

Moreover, under Section 79 of PD No. 1445, otherwise known as the Government Auditing Code,
the government is required to sell valuable government property through public bidding. Section 79
of PD No. 1445 mandates that:... "In the event that the public auction fails, the property may be sold
at a private sale at such price as may be fixed by the same committee or body concerned and
approved by the Commission."

However, the original JVA dated April 25, 1995 covered not only the Freedom Islands and the
additional 250 hectares still to be reclaimed, it also granted an option to AMARI to reclaim another
350 hectares. The original JVA, a negotiated contract, enlarged the reclamation area to 750 hectares.
The failure of public bidding on December 10, 1991, involving only 407.84 hectares, is not a valid
justification for a negotiated sale of 750 hectares, almost double the area publicly auctioned.

Jurisprudence holding that upon the grant of the patent or issuance of the certificate of title the
alienable land of the public domain automatically becomes private land cannot apply to government
units and entities like PEA.

The grant of legislative authority to sell public lands in accordance with Section 60 of CA No. 141
does not automatically convert alienable lands of the public domain into private or patrimonial
lands. The alienable lands of the public domain must be transferred to qualified private parties, or to
government entities not tasked to dispose of public lands, before these lands can become private or
patrimonial lands. Otherwise, the constitutional ban will become illusory if Congress can declare
lands of the public domain as private or patrimonial lands in the hands of a government agency
tasked to dispose of public lands.

To allow vast areas of reclaimed lands of the public domain to be transferred to PEA as private
lands will sanction a gross violation of the constitutional ban on private corporations from acquiring
any kind of alienable land of the public domain. This scheme can even be applied to alienable
agricultural lands of the public domain since PEA can "acquire . . . any and all kinds of lands."

The 157.84 hectares of reclaimed lands comprising the Freedom Islands, now covered by
certificates of title in the name of PEA, are alienable lands of the public domain. PEA may lease these

57 | P a g e
lands to private corporations but may not sell or transfer ownership of these lands to private
corporations.

7. Considering that the Amended JVA is null and void ab initio, there is no necessity to rule on this
last issue. Besides, the Court is not the trier of facts, and this last issue involves a determination of
factual matters.

WHEREFORE, the petition is GRANTED. The Public Estates Authority and Amari Coastal Bay
Development Corporation are PERMANENTLY ENJOINED from implementing the Amended Joint
Venture Agreement which is hereby declared NULL and VOID ab initio.

Polluter Pays" Principle

The "polluter pays“ principle aims at ensuring that the costs of environmental control fall in the first
place on the polluters, thereby ensuring that market forces take these costs into account and that
resources would be allocated accordingly in production and consumption.

While pollution control policies are currently enforced using the traditional command and control
principle, a paradigm shift to a market-based approach is gaining acceptance and policy instruments
are already being put in place.

Examples of market-based instruments (MBIs) include

pollution charges, environmental subsidies, deposit-refund systems and tradable permits.

The use of charge systems has been advocated for various technical and economic

arguments. The main arguments advanced for the use of the system include

a) Economic efficiency in meeting environmental objectives and administration;

b) A source of revenue for pollution control;

c) Incentive to innovate on the part of polluters; and

d) Flexibility and transparency of the system.

The charge system creates incentives to polluters to reduce the cost of meeting a given standard or
reduce the charge liability by:

1) Lessening product output or substituting less pollution-intensive products;

2) Changing the inputs;

3) Choosing different known technologies; and

4) Installing pollution treatment facilities.

Making use of pollution charges basically embraces the "polluter pays" principle. The principle is
embodied in the idea that environmental externalities should be internalized by those who cause
them. By internalizing the cost of pollution, firms are given an incentive to minimize the generation
of pollutants and/or provide treatment for the pollution generated.

In terms of pollution charges for water management, their use serves two objectives—
environmental and economic. The environmental objective is to maintain a specified water quality

58 | P a g e
standard while the economic objective is to encourage firms to pursue the most cost-effective
pollution prevention and abatement measures that would allow them to comply with pollution load
limits.

Accordingly, the design of an effective pollution charge system for water quality management must
take into consideration three important aspects:

1) The ecological characteristic of the water body;

2) The source and nature of pollution; and

3) The institutional and regulatory structure.

The Laguna Lake Development Authority (LLDA) provides an example of the pollution charge system
applied to industrial and commercial establishments around the lake. The pollution charge consists
of two parts: a fixed amount and a variable amount. The fixed charge rate covers the administrative
costs of implementing the charge system while the variable fees are charges based on pollution load.
The higher the volume and concentration of pollution being discharged are, the higher the fee is.

Under the system, industries covered include, albeit not limited to, food processing, food canning,
livestock raising, grain milling, petroleum refining, plastic and synthetics, pulp and paper, sugarcane
processing, textile milling, and thermal power generation (Favila 1996). While the charge system is
currently applied only to the pollutant biological oxygen demand (BOD), other pollutants will be
included in the future.

The variable charge rate is intended to approximate the cost of pollution abatement. Under the
pollution charge system, considerations are taken so that the charge rate will not be cheaper for
industries to pollute than to pay the fee.

Command and control principle

In a "command and control regime," the government enforces regulatory measures and permit
requirements to control activities causing environmental pollution.

Environmental quality standards prescribe the allowable and acceptable level of pollutants with fine
and penalties for noncompliance. Policies are now shifting from this dominant approach to more
market-based instruments for economic and technical arguments.

The Rio Declaration:

Principle 15 - the Precautionary Approach

In order to protect the environment, the precautionary approach shall be widely applied by States
according to their capabilities. Where there are threats of serious or irreversible damage, lack of full
scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent
environmental degradation.

Principle 15 codified for the first time at the global level the precautionary approach, which indicates
that lack of scientific certainty is no reason to postpone action to avoid potentially serious or
irreversible harm to the environment. Central to principle 15 is the element of anticipation,
reflecting a requirement that effective environmental measures need to be based upon actions

59 | P a g e
which take a long-term approach and which might anticipate changes on the basis of scientific
knowledge.

International Environmental Law

Common but differentiated responsibilities (CBDR), principle of international environmental law
establishing that all states are responsible for addressing global environmental destruction yet not
equally responsible. The principle balances, on the one hand, the need for all states to take
responsibility for global environmental problems and, on the other hand, the need to recognize the
wide differences in levels of economic development between states. These differences in turn are
linked to the states’ contributions to, as well as their abilities to address, these problems. CBDR was
formalized in international law at the 1992 United Nations Conference on Environment and
Development (UNCED) in Rio de Janeiro.

CBDR resolves a tension between two older notions of environmental governance. On the one hand,
the idea of a “common responsibility” spoke directly to the notion of “common heritage of mankind,”
acknowledged by a 1967 UN resolution that had first emerged as an expression of concern for the loss
of natural resources belonging to all (especially maritime, such as whales and tuna). The 1992 UN
negotiations were organized around the four key themes of climate change, deforestation,
desertification, and biodiversity degradation—environmental problems whose global repercussions
brought home the need for a collective response, which needed in turn to be grounded in a common
responsibility. In legal terms, CBDR describes the shared obligation of two or more states toward the
protection of a particular environmental resource.

At the practical level, CBDR emerged at the 1992 conference as a compromise between the positions
of developed and developing countries with regard to environmental protection. It aims at bringing
about the conditions of environmental governance that, to be effective, need to be as inclusive as
possible. At the ethical level, it is an expression of general principles of equity in international law. It
recognizes the historical correlation between higher levels of development and a greater contribution
to the degradation of global environmental resources, such as water and air, and enables the sharing
of responsibility accordingly.

The various occurrences of the CBDR in international legal texts include the Rio Declaration, where it
is enunciated as “Principle 7,” and the United Nations Framework Convention on Climate Change,
together with its 1997 Kyoto Protocol. It was retroactively incorporated into the Vienna Convention
and Montreal Protocol on substances that destroy the ozone layer. Practically, it entails the deferral
of developing countries’ compliance with the objectives of these environmental conventions.

CBDR is not unanimously accepted among developed countries. At the Rio negotiations it was rejected
by the United States, which has since conditioned its participation in any restrictive scheme on a
specific commitment from developing countries to participate as well (the 1997 Byrd-Hagel
Resolution). As a result of this lack of consensus, CBDR has been relatively sidelined in environmental
governance debates.

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 DENR ADMIN ORDER 15-90:

REGULATIONS GOVERNING THE UTILIZATION, DEVELOPMENT AND MANAGEMENT OF MANGROVE

RESOURCES

IMPLEMENTING AGENCY

DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES in coordination with the Department

of Agriculture

CONTINUING ASSESSMENT OF MANGROVE RESOURCES:

There shall be a periodic assessment of the mangrove resources throughout the country. The
national mapping and resource information authority (NAMRIA) shall be responsible in the
interpretation of aerial photographs, land satellite (LANDSAT) and other remote sensing data while
the regional land evaluation teams will do the ground verification activities. The involvement of
interested non-government organizations shall also be solicited in the conduct of the assessment.

POLICY AND OBJECTIVE:

• To sustain optimum productivity, it shall be the policy of the government to conserve,

protect, rehabilitate and develop the remaining mangrove, resources of the country;

• Give preference to organizations, associations or cooperatives over individual users in the

utilization and development of the mangrove resources;

• Stop the wanton exploitation of the mangrove resources; and enhance the replenishment of
the denuded areas through natural or artificial means. (Section 1)

Prohibitions under DENR AO 15-90

• cutting and/or debarking of the trees for commercial purposes in areas outside the coverage
of Fishpond Lease Agreements and mangrove plantations shall no longer be allowed.
(SECTION 3)

• Conversion of Mangrove Areas into Fishponds Conversion of thickly vegetated mangrove

areas into fishponds shall no longer be allowed. All mangrove swamps released to the
Bureau of Fisheries and Aquatic Resources which are not utilized, or which have been
abandoned for five (5) years from the date of such release shall revert to the category of
forest land in accordance with existing laws and regulations. (SECTION 4)

• .In accordance with the national policy fishponds will not be allowed within mangrove forest
reserves and wilderness areas. However, in cases where legally acquired productive
fishponds are found within such areas, and the government opts to revert them to the
category of forest lands and if public interest so dictates, the operator would be justly
compensated. (SECTION 5)

• conversion of mangroves for, but not limited to, fishpond development, saltworks and
paddy cultivation shall not be allowed under the certificate of stewardship contract. (Section
6)

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 ESTABLISHMENT OF MANGROVE PLANTATIONS

Mangrove plantations are allowed to be established in denuded or sparsely-vegetated mangrove

forest lands through an approved permit in accordance with the relevant provisions of Forestry
Administrative 0rder no. 8-3, series of 1941, prescribing the revised guidelines governing the special
uses of forest lands, as amended, and other related laws, rules and regulations.

The initial maximum area allowed for mangrove plantation establishment shall be fixed at fifty
(50) hectares for corporations, cooperatives and associations and ten (10) hectares for individuals.
However, additional areas may be subsequently granted to existing developers after thorough
evaluation of accomplishments provided that the accumulated area does not exceed two-hundred
(200) hectares for corporations, cooperatives and associations and fifty (50) hectares for individuals.

PENAL PROVISION

Violations of any of the provisions of this order shall be penalized in accordance with existing laws
and regulations

R.P. VS PAGADIAN CITY TIMBER

G. R NO. 159308, SEPTEMBER 16,2008

Facts

Republic of the Philippines thru the Department of Environment and Natural Resources (DENR) and
respondent Pagadian Timber City Timber Co Inc. (PCT), executed an Industrial Forest Management
Agreement (IFMA), authorizing PCT to develop, utilize and manage 1999.4 hectares of land in
Zamboanga del Sur for the production of timber and other forest products subject to a production
scheme in accordance to the Comprehensive Development and Management Plan (CDMP)
approved by DENR.

In response to the numerous complaints filed by members of the Subanen tribe regarding
respondents alleged failure to implement the CDMP, disrespect of their rights as an indigenous
people, and the constant threats and harassment by armed men employed by respondent, Regional
Executive Director Antonio Mendoza, issued Regional Special Order no. 217 creating a regional team
to evaluate and assess the IFMA. The DENR requested for representative of Pagadian to appear
before them upon compliance with which, a conference was held between the parties.

After the evaluation , RED Mendoza submitted to the DENR the memorandum regarding the
performance evaluation and recommended the cancelation of the said IFMA of the following
grounds:

A. The CDMP stipulated that 1,597 hectares must be planted by the respondent, unfortunately out
of 1597 the only 365.2hectares are planted

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B. Locations and boundaries of reported plantation cannot be located by neither of the IFMA holder
where accompanied the validating team.

C. The holder constructed only 1 look out tower as against the goal of 4 towers. Established 1
nursery instead of goal of 2.

D. Non social acceptance of the projects by the residents in the locality.

Acting on the memorandum, the DENR Sec. issued an order cancelling IFMA for failure to implement
the approved CDMP and the lessee failed to protect the area from forest fires.

On the other hand, respondents appealed for reconsideration and contends that their company was
not accorded due process before the order of cancellation was issued. They were not furnished copy
of the evaluation and recommendation. Respondent appealed to the Office of the President even as
the said letter for the reconsideration was not yet acted upon.

The motion for consideration was denied by the Office of the President and affirmed the
cancellation order based on the results of the actual evaluation and assessment of the DENR team.

Aggrieved, respondent filed a petition for review with a prayer for the insurance of a writ of
preliminary injunction against the implementation of the assailed order with the Court of Appeals
which ruled in their favor. CA declared that the IFMA was a contract that could not be unilaterally
cancelled without infringing the rights of respondent to due process and against impairment of
contracts.

ISSUE

Whether or not the IFMA is a privilege granted by the State which may be revoked without violating
the non-impairment clause

RULING

Yes, IFMA is a licensed agreement under Presidential Decree No. 705 (Revised Forestry Code). It is
not an ordinary contract which is protected by the constitution against impairment but a mere
privilege granted by the state to qualified persons by means of a permit, license, franchise,
agreement, or other similar concessions, which in this case is the exploration, development and
utilization of the forest lands belonging to the state under its full control and supervision. Thus, the
cancellation of the IFMA does not amount to a rescission of a contract but a mere withdrawal of this
privilege. As such, the due process clause under the constitution does not likewise apply since the
IFMA area cannot be considered as property of respondent. With the forest lands covered by it, is
imbued with paramount considerations of public interest and public welfare such that whatever
rights respondent may have under it must yield to the police power of the state.

An IFMA has for its precursor the Timber License agreement (TLA. A timber license is an instrument
by which the state regulates the utilization and disposition of forest resources to the end that public
welfare is promoted. A timber license is not a contract within the purview of the due process clause;
it is only a license or privilege, which can be validly withdrawn whenever dictated by public interest
or public welfare as in this case.

All filipino citizens are entitled, by right, to a balanced and healthful ecology as declared

63 | P a g e
under section 16, article II of the constitution. This right carries with it the correlative duty to refrain
from impairing the environment, particularly our diminishing forest resources. To uphold and
protect this right is an express policy of the state. The DENR is the instrumentality of the state
mandated to actualize this policy. Thus, private rights must yield when they come in conflict with
this public policy and common interest. They must give way to the police or regulatory power of the
state, in this case through the DENR, to ensure that the terms and conditions of existing laws, rules
and regulations, and the IFMA itself are strictly and faithfully complied with.

RESIDENT MARINE MAMMALS OF THE PROTECTED SEASCAPE TANON STRAIT v. SEC. ANGELO
REYES, (G)
G.R. No. 180771, 21 April 2015

FACTS:
 June 13, 2002, the Government of the Philippines, acting through the DOE, entered into a
Geophysical Survey and Exploration Contract-102 (GSEC-102) with JAPEX. This contract involved
geological and geophysical studies of the Tañon Strait.
 May 9 to 18, 2005, JAPEX conducted seismic surveys in and around the Tañon Strait. A multi-
channel sub-bottom profiling covering approximately 751 kilometers was also done to determine
the area's underwater composition.
 January 31, 2007, the Protected Area Management Board of the Tañon Strait (PAMB-Tañon
Strait) issued Resolution No. 2007-001, wherein it adopted the Initial Environmental Examination
(IEE) commissioned by JAPEX, and favorably recommended the approval of JAPEX's application for
an ECC.
 March 6, 2007, the EMB of DENR Region VII granted an ECC to the DOE and JAPEX for the
offshore oil and gas exploration project in Tañon Strait. Months later, on November 16, 2007, JAPEX
began to drill an exploratory well, with a depth of 3,150 meters, near Pinamungajan town in the
western Cebu Province. This drilling lasted until February 8, 2008.
 Petitioners then applied to this Court for redress, via two separate original petitions both
dated December 17, 2007, wherein they commonly seek that respondents be enjoined from
implementing SC-46 for, among others, violation of the 1987 Constitution.

ISSUE:
 Whether or not the service contract is prohibited on the ground that there is no general law
prescribing the standard or uniform terms, conditions, and requirements for service contracts
involving oil exploration and extraction.

HELD:
 No, the disposition, exploration, development, exploitation, and utilization of indigenous
petroleum in the Philippines are governed by Presidential Decree No. 87 or the Oil Exploration and
Development Act of 1972. This was enacted by then President Ferdinand Marcos to promote the
discovery and production of indigenous petroleum through the utilization of government and/or
local or foreign private resources to yield the maximum benefit to the Filipino people and the
revenues to the Philippine Government.
 Contrary to the petitioners' argument, Presidential Decree No. 87, although enacted in 1972,
before the adoption of the 1987 Constitution, remains to be a valid law unless otherwise repealed.
 Moreover, in cases where the statute seems to be in conflict with the Constitution, but a
construction that it is in harmony with the Constitution is also possible, that construction should be
preferred. This Court, in Pangandaman v. Commission on Elections expounding on this point,

64 | P a g e
pronounced: It is a basic precept in statutory construction that a statute should be interpreted in
harmony with the Constitution and that the spirit, rather than the letter of the law determines its
construction; for that reason, a statute must be read according to its spirit and intent.
 Note that while Presidential Decree No. 87 may serve as the general law upon which a
service contract for petroleum exploration and extraction may be authorized, as will be discussed
below, the exploitation and utilization of this energy resource in the present case may be allowed
only through a law passed by Congress, since the Tañon Strait is a NIPAS area.

Metropolitan Manila Development Authority vs Concerned Residents of Manila Bay

the Concerned Residents of Manila Bay (CROMB) filed an action for mandamus to compel the
Metropolitan Manila Development Authority (MMDA) and other government agencies to clean up the
Manila Bay. CROMB argued that the environmental state of the Manila Bay is already dangerous to
their health and the inaction of MMDA and the other concerned government agencies violates their
rights to life, health, and a balanced ecology guaranteed by the Constitution. CROMB also averred
under the Environmental Code, it is MMDA’s duty to clean up the Manila Bay.
The trial court agreed with CROMB and ordered MMDA et al to clean up the Manila Bay. MMDA
assailed the decision on the ground that MMDA’s duty under the Environmental Code is merely a
discretionary duty hence it cannot be compelled by mandamus. Further, MMDA argued that the RTC’s
order was for a general clean-up of the Manila Bay yet under the Environmental Code, MMDA was
only tasked to attend to specific incidents of pollution and not to undertake a massive clean up such
as that ordered by the court.
ISSUE: Whether or not MMDA may be compelled by mandamus to clean up Manila Bay.
HELD: Yes. It is true that in order for MMDA to implement laws like the Environmental Code, the
process of implementing usually involves the exercise of discretion i.e., where to set up landfills. But
this does not mean that their function or mandate under the law is already discretionary. Looking
closer, MMDA’s function to alleviate the problem on solid and liquid waste disposal problems is a
ministerial function. In short, MMDA does not have the discretion to whether or not alleviate the
garbage disposal problem in Metro Manila, particularly in the Manila Bay area. While the
implementation of the MMDA’s mandated tasks may entail a decision-making process, the
enforcement of the law or the very act of doing what the law exacts to be done is ministerial in nature
and may be compelled by mandamus.
Anent the issue on whether or not MMDA’s task under the Environmental Code involves a general
clean up, the Supreme Court ruled that MMDA’s mandate under the Environmental Code is to perform
cleaning in general and not just to attend to specific incidents of pollution. Hence, MMDA, together
with the other government agencies, must act to clean up the Manila Bay as ordered by the RTC.

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 Roldan vs. Arca [GR L-25434, 25 July 1975]
First Division, Makasiar (J): 4 concur, 1 took no part Constitutional Law II, 2005 ( 62 ) Narratives
(Berne Guerrero)

Facts:

On 3 April 1964, Morabe, De Guzman & Company filed with the Court of First Instance (CFI) of
Manila a civil case (56701) against Fisheries Commissioner Arsenio N. Roldan, Jr., for the recovery of
fishing vessel Tony Lex VI which had been seized and impounded by the Fisheries Commissioner
through the Philippine Navy. On 10 April 1964, the company prayed for a writ of preliminary
mandatory injunction with the CFI, but said prayer was denied. On 28 April 1964, the CFI set aside its
order of 10 April 1964 and granted the company's motion for reconsideration praying for preliminary
mandatory injunction. Thus, the company took possession of the vessel Tony Lex VI from the
Philippine Fisheries Commission and the Philippine Navy by virtue of the said writ. On 10 December
1964, the CFI dismissed Civil Case 56701 for failure of the company to prosecute as well as for failure
of the Commission and the Navy to appear on the scheduled date of hearing. The vessel, Tony Lex VI
or Srta. Winnie however, remained in the possession of the company. On 20 July 1965, the Fisheries
Commissioner requested the Philippine Navy to apprehend vessels Tony Lex VI and Tony Lex III, also
respectively called Srta. Winnie and Srta. Agnes, for alleged violations of some provisions of the
Fisheries Act and the rules and regulations promulgated thereunder. On August 5 or 6, 1965, the two
fishing boats were actually seized for illegal fishing with dynamite. Fish caught with dynamite and
sticks of dynamite were then found aboard the two vessels. On 18 August 1965, the Fisheries
Commissioner requested the Palawan Provincial Fiscal to file criminal charges against the crew
members of the fishing vessels. On 30 September 1965, there were filed in the CFI of Palawan a
couple of informations, one against the crew members of Tony Lex III, and another against the crew
members of Tony Lex VI

both for violations of Act 4003, as amended by Commonwealth Acts 462, 659 and 1088, i.e., for
illegal fishing with the use of dynamite. On the same day, the Fiscal filed an ex parte motion to hold
the boats in custody as instruments and therefore evidence of the crime, and cabled the Fisheries
Commissioner to detain the vessels. On October 2 and 4, likewise, the CFI of Palawan ordered the
Philippine Navy to take the boats in custody. On 2 October 1965, the company filed a complaint with
application for preliminary mandatory injunction (Civil Case 62799) with the CFI of Manila against
the Commission and the Navy. Among others, it was alleged that at the time of the seizure of the
fishing boats in issue, the same were engaged in legitimate fishing operations off the coast of
Palawan; that by virtue of the offer of compromise dated 13 September 1965 by the company to the
Secretary of Agriculture and Natural Resources, the numerous violations of the Fishery Laws, if any,
by the crew members of the vessels were settled. On 18 October 1965, Judge Francisco Arca issued
an order granting the issuance of the writ of preliminary mandatory injunction and issued the
preliminary writ upon the filing by the company of a bond of P5,000.00 for the release of the two
vessels. On 19 October 1965, the Commission and the Navy filed a motion for reconsideration of the
order issuing the preliminary writ on 18 October 1965 on the ground, among others, that on 18
October 1965 the Philippine Navy received from the Palawan CFI two orders dated October 2 and 4,
1965 requiring the Philippine Navy to hold the fishing boats in custody and directing that the said
vessels should not be released until further orders from the Court, and that the bond of P5,000.00 is
grossly insufficient to cover the Government's losses in case the two vessels, which are worth
P495,000.00, are placed beyond the reach of the Government, thus frustrating their forfeiture as
instruments of the crime. On 23 November 1965, Judge Arca denied the said motion for

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reconsideration. The Commission and the Navy filed a petition for certiorari and prohibition with
preliminary injunction to restrain Judge Arca from enforcing his order dated 18 October 1965, and
the writ of preliminary mandatory injunction thereunder issued.

Issue:

Whether the Fisheries Commissioner and the Navy can validly direct and/or effect the seizure of the
vessels of the company for illegal fishing by the use of dynamite and without the requisite licenses.

Held:

Section 4 of Republic Act 3512 approved on 20 March 1963 empowers the Fisheries Commissioner
to carry out the provisions of the Fisheries Act, as amended, and all rules and regulations
promulgated thereunder, to make searches and seizures personally or through his duly authorized
representatives in accordance with the Rules of Court, of "explosives such as dynamites and the like;
including fishery products, fishing equipment, tackle and other things that are subject to seizure
under existing fishery laws"; and "to effectively implement the enforcement of existing fishery laws
on illegal fishing." Paragraph 5 of Section 4 of the same Republic Act 3512 likewise transferred to
and vested in the Philippine Fisheries Commission "all the powers, functions and duties heretofore
exercised by the Bureau of Customs, Philippine Navy and Philippine Constabulary over fishing vessels
and fishery matters." Section 12 of the Fisheries Act, otherwise known as Republic Act 4003, as
amended, prohibits fishing with dynamites or other explosives which is penalized by Section 76
thereof "by a fine of not less than P1,500.00 nor more than P5,000.00, and by imprisonment for not
less than one (1) year and six (6) months nor more than five (5) years, aside from the confiscation
and forfeiture of all explosives, boats, tackles, apparel, furniture, and other apparatus used in fishing
in violation of said Section 12 of this Act." Section 78 of the same Fisheries Law provides that "in case
of a second offense, the vessel, together with its tackle, apparel, furniture and stores shall be
forfeited to the Government." The second paragraph of Section 12 also provides that "the
possession and/or finding, of dynamite, blasting caps and other explosives in any fishing boat shall
constitute a presumption that the said dynamite and/or blasting caps and explosives are being used
for fishing purposes in violation of this Section, and that the possession or discover in any fishing
boat or fish caught or killed by the use of dynamite or other explosives, under expert testimony,
shall constitute a presumption that the owner, if present in the fishing boat, or the fishing crew have
been fishing with dynamite or other explosives." Under Section 78 of the Fisheries Act, as amended,
any person, association or corporation fishing in deep sea fishery without the corresponding license
prescribed in Sections 17 to 22 Article V of the Fisheries Act or any other order or regulation deriving
force from its provisions, "shall be punished for each offense by a fine of not more than P5,000.00,
or imprisonment, for not more than one year, or both, in the discretion of the Court; Provided, That
in case of an association or corporation, the President or manager shall be directly responsible for
the acts of his employees or laborers if it is proven that the latter acted with his knowledge;
otherwise the responsibility shall extend only as far as fine is concerned: Provided, further, That in
the absence of a known owner of the vessel, the master, patron or person in charge of such vessel
shall be responsible for any violation of this Act: and Provided, further, That in case of a second
offense, the vessel together with its tackle, apparel, furniture and stores shall be forfeited to the
Government." Under Section 13 of Executive Order 389 of 23 December 1950, reorganizing the
Armed Forces of the Philippines, the Philippine Navy has the function, among others, "to assist the
proper governmental agencies in the enforcement of laws and regulations pertaining to Fishing.
Section 2210 of the Tariff and Customs Code, as amended by PD 34 of 27 October 1972, authorized
any official or person exercising police authority under the provisions of the Code, to search and
seize any vessel or air craft as well as any trunk, package, bag or envelope on board and to search

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any person on board for any breach or violation of the customs and tariff laws. Herein, when the
Philippine Navy, upon request of the Fisheries Commissioner, apprehended on August 5 or 6, 1965
the fishing boats Tony Lex III and Tony Lex VI, otherwise known respectively as Srta. Agnes and Srta.
Winnie, these vessels were found to be without the necessary license in violation of Section 903 of
the Tariff and Customs Code and therefore subject to seizure under Section 2210 of the same Code,
and illegally fishing with explosives and without fishing license required by Sections 17 and 18 of the
Fisheries Law. Search and seizure without search warrant of vessels and aircrafts for violations of the
customs laws have been the traditional exception to the constitutional requirement of a search
warrant, because the vessel can be quickly moved out of the locality or jurisdiction in which the
search warrant must be sought before such warrant could be secured; hence it is not practicable to
require a search warrant before such search or seizure can be constitutionally effected. The same
exception should apply to seizures of fishing vessels breaching our fishery laws: They are usually
equipped with powerful motors that enable them to elude pursuing ships of the Philippine Navy or
Coast Guard.

A.M. No. MTJ-00-1323 August 22, 2002

Judge PEDRO B. CABATINGAN SR. (Ret.), complainant,
vs.
Judge CELSO A. ARCUENO, MCTC, Cataingan, Masbate, respondent.

DECISION

PANGANIBAN, J.:

Ignorance of the law excuses no one -- certainly not a judge -- from compliance therewith. This is
particularly true in cases where the law is so elementary that to be unaware of it or to ignore it
constitutes gross ignorance, which is administratively sanctionable.

Statement of the Case

A sworn Administrative Complaint1 filed by Judge Pedro B. Cabatingan Sr. (ret.) charges Judge Celso A.
Arcueno of the Municipal Circuit Trial Court of Cataingan, Masbate, with gross ignorance of the law.

The Facts

The facts are summarized by the Office of the Court Administrator (OCA) in its Memorandum 2 dated
September 25, 2001, as follows:

"Complainant, who is the counsel for the accused [Benito Bucado3 ] xxx, narrates that a complaint for
Illegal Fishing was filed in respondent’s court for preliminary investigation and was docketed as
Criminal Case No. 4877-PVC. Finding a prima facie case against all the accused, respondent issued a
warrant of arrest fixing the bail bond at ₱50,000 for each of them. Benito Bucado, one of the accused,
posted a property bond. Respondent, however, in violation of Section 17, rule 114 of the rules of
Court, allegedly refused to accept the bail bond upon the contention that he no longer ha[d]
jurisdiction over the case inasmuch as the records were already forwarded to the Office of the
Assistant provincial Prosecutor for review.

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"When required to comment, respondent Judge Celso A. Arcueno, denied the charges. He narrates
that the aforementioned criminal case was filed in his court for preliminary investigation. Finding the
existence of probable cause, he issued a warrant of arrest with the recommended bail of ₱50,000.00
for each of the accused. Upon the arrest of the accused, he issued an Order dated September 15, 1998
requiring them to submit their counter-affidavits and that of their witnesses within ten (10) days from
receipt thereof. However, the accused failed to submit their counter-affidavits. They also failed to post
bail for their temporary liberty.

After the lapse of the ten (10) day period as provided in Section 3 (f) of Rule 112, Rules of [C]ourt,
respondent, finding the existence of probable cause against the accused, issued a resolution dated 13
October 1998 forwarding the entire records of the case to the RTC, Branch 49, Cataingan, Masbate
thru the Assistant Provincial Prosecutor, for review. On 15 October 1998, the Office of the Assistant
Provincial prosecutor received the records of the subject criminal case. On 4 November 1998, while
the case was being reviewed by the Office of the Assistant Provincial Prosecutor, complainant
presented the bail bond of the accused Benito y Ferrer for respondent’s approval.

"Respondent claims that he initially refused to approve the property bond because he believed that
he had already lost jurisdiction over the case. Also, the tax declaration of the property being put up as
a bond was not attached to the bail bond form to show proof of ownership thereof by the bondsman.
However, on 20 November 1998, he approved said bail bond and consequently ordered the release
of accused Bucado.

"On 18 September 2000, the Third Division of this Court resolved to DOCKET the complaint as an
administrative matter and to require the parties to MANIFEST to the Court within twenty (20) days
from notice, whether they [were] submitting the case on the basis of the pleadings/records already
filed and submitted.

"In compliance with the aforementioned resolution, respondent Judge filed a Manifestation with
Motion to Dismiss dated 30 October 2000. On 17 January 2001, the Court resolved to NOTE the
respondent’s Manifestation with Motion to Dismiss and to consider as WAIVED the filing of
Manifestation by complainant for his failure to submit the same within the period specified under the
Resolution of 18 September 2000."4

In his Manifestation with Motion to Dismiss,5 respondent justified his refusal to approve the bail bond.
His reason for his refusal was that, in notarizing the bail bond document, complainant grossly violated
Section 10 of Rule 114 of the 1985 Rules on Criminal Procedure. In so doing, he arrogated unto himself
the power and authority pertaining to a judge. Respondent reiterated his previous Manifestation,
dated July 12 2000, praying for the dismissal of the case on the ground that the parties had mutually
and amicably settled the case. He submitted, as proof of the settlement, the Joint Motion to Dismiss
signed by both parties.

The Court Administrator’s Recommendation

After a perusal of the records of the case, Deputy Court Administrator Jose P. Perez, in his Report
dated September 25, 2001, explained that the refusal of respondent judge to approve the bail bond
posted by the accused showed the latter’s ignorance of the rules of procedure. Thus, the former
submitted the following recommendations:

"1. Respondent’s Motion to Dismiss be DENIED for lack of merit; and

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 "2. Respondent Judge Celso A. Arcueno be found guilty of gross ignorance of the law and be
ordered to pay a FINE of Ten Thousand Pesos (P10,000.00) with a STERN WARNING that a
repetition of the same or [a] similar act shall be dealt with more severely."6

This Court’s Ruling

We agree with the OCA’s findings and recommendation, but with some modifications as to the
penalty.

Administrative Liability

Complainant asserts that respondent judge is guilty of gross ignorance of the law for refusing to
approve the bail bond of the accused in violation of Section 17 of Rule 114 of the Rules of Court.
Complainant also claims that this lapse unduly deprived the accused of the constitutional right to bail.7

On the other hand, in his Comment8 dated June 1, 1999, respondent explains that he refused to
approve the bail bond, because he had lost jurisdiction over the case after forwarding for review the
records thereof to the Office of the Assistant Provincial Prosecutor. He asserts that "once jurisdiction
is lost, no further action can be entertained in connection therewith."9 He adds that the tax declaration
for the property put up as a bond was not attached to the bail bond form to show proof of the
bondsman’s ownership or title.10

However, in his Manifestation with Motion to Dismiss,11 dated October 30, 2000, respondent judge
proffered a different justification for his refusal to approve the bail bond. He theorized that
complainant, as counsel for the accused Benito Bucado in Criminal Case No. 4877-PVC and as notary
public, had grossly and seriously violated Section 10 of Rule 114 of the 1985 Rules on Criminal
procedure, as amended. Complainant supposedly violated this provision by arrogating unto himself
the power and authority that pertained to a judge.

We are not persuaded. As correctly pointed out by the OCA, the argument of respondent judge in his
Manifestation with Motion to Dismiss is clearly an afterthought; and, hence, deserves no credence.

To be able to render substantial justice and maintain public confidence in the legal system, judges
should be embodiments of competence, integrity and independence.12 Hence, they are expected to
exhibit more than just a cursory acquaintance with statutes and procedural rules and to apply them
properly in all good faith.13 They are likewise expected to demonstrate mastery of the principles of
law, keep abreast of prevailing jurisprudence,14 and discharge their duties in accordance therewith.15

Further, judges should administer their office with due regard to the integrity of the system of law
itself, remembering that they are not depositories of arbitrary power, but are judges under the
sanction of law.16 It must be emphasized that this Court has formulated and promulgated rules of
procedure to ensure the speedy and efficient administration of justice. Wanton failure to abide by
these rules undermines the wisdom behind them and diminishes respect for the rule of law.17

Before we can decide whether respondent judge erred in refusing to grant bail, we deem it necessary
to determine first whether he had jurisdiction to grant it under the circumstances of this case.18 Bail is
defined as the "security given for the release of a person in custody of the law."19 Section 17, paragraph
(c) of Rule 114 of the Revised rules of Court, provides:

"SEC. 17. Bail, where filed. – (c) Any person in custody who is not yet charged in court may apply for
bail with any court in the province, city or municipality where he is held."

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In the case at bar, Benito Bucado was arrested in the Municipality of Cataingan after a preliminary
investigation conducted by respondent judge. The latter therefore had the authority to grant bail and
to order the release of the accused.20 Even if the records of the case had been transmitted for review
to the Office of the provincial Prosecutor, respondent could have approved the bail bond posted by
the accused. Such action cannot be validly attacked on jurisdictional grounds.21

Considering that one of his responsibilities as a judge was to conduct preliminary investigations, it was
therefore his duty to keep abreast of the laws, rulings and jurisprudence on this matter. Because he
had apparently lagged behind,22 he fell short of his vow to live up to the injunction of the code of
Judicial Conduct to "maintain professional competence."23

When the law is so elementary, as in this case, not to be aware of it constitutes gross ignorance
thereof.24 Indeed, everyone is presumed to know the law.25 Ignorance of the law, which everyone is
bound to know, excuses no one -- certainly not a judge.26

On July 7, 2000, a Joint Motion to Dismiss27 was executed by complainant and respondent. It should
be remembered that a complaint for misconduct and similar charges against a judicial or other public
officer or employee cannot just be withdrawn at any time. A simple expediency such as a
complainant’s sudden claim of change of mind28 followed by a withdrawal of the complaint would not
result in the automatic dismissal of the case.29

Further, the faith and confidence of the people in their government and its agencies and
instrumentalities need to be maintained. The people should not be made to depend upon the whims
and caprices of complainants who are, in a real sense, only witnesses therein.30 To rule otherwise
would subvert the fair and prompt administration of justice as well as undermine the discipline of
court personnel.31

In any case, it bears noting that the administrative liability for ignorance of the law does not necessarily
arise from the mere fact that a judge issued an order that is adjudged to be erroneous.32 Judges may
not be held administratively accountable for every erroneous order; it is only when they act
fraudulently or with gross ignorance that administrative sanctions are called for.33

To be held liable for gross ignorance of the law, the judge must be shown to have committed an error
that was "gross or patent, deliberate or malicious."34 Also administratively liable therefor is a judge
who -- shown to have been motivated by bad faith, fraud, dishonesty or corruption -- ignored,
contradicted or failed to apply settled law and jurisprudence.35

It must be pointed out that this is not the first infraction of Judge Arcueno. Previously, in Gimeno v.
Arcueno Sr.,36 he was charged with and found guilty of ignorance of the law when, without any hearing,
he granted bail to the accused who had been charged with a capital offense in a criminal case for
robbery with homicide.37 Respondent was consequently fined in the amount of ₱5,000 and warned
that a repetition of the same or a similar act in the future would be severely dealt with.

Indeed, it seems that respondent judge has remained undeterred in disregarding the law which he has
pledged to uphold and the Code which he has promised to live by.38 He appears to be unfazed by the
previous penalty and warnings he received.39 Because this is his second infraction, it warrants a heavier
penalty.40

WHEREFORE, Judge Celso A. Arcueno is hereby found GUILTY of gross ignorance of the law and is
FINED in the amount of fifteen thousand pesos (₱15,000), payable within five days from notice. He is
further warned that a repetition of this or similar offenses will be dealt with even more severely.

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SO ORDERED.

Philippine Rabbit vs. People

G.R. No. 147703 April 14, 2004

PANGANIBAN, J.:
Facts:

Napoleon Roman was found guilty and convicted of the crime of reckless imprudence resulting to
triple homicide, multiple physical injuries and damage to property and was sentenced to suffer
imprisonment and to pay damages. The court further ruled that in the event of the insolvency of
accused, petitioner shall be liable for the civil liabilities of the accused. Evidently, the judgment against
accused had become final and executory.

Admittedly, accused had jumped bail and remained at-large. The CA ruled that the institution of a
criminal case implied the institution also of the civil action arising from the offense. Thus, once
determined in the criminal case against the accused-employee, the employer’s subsidiary civil liability
as set forth in Article 103 of the Revised Penal Code becomes conclusive and enforceable.

Issue:

Whether or not an employer, who dutifully participated in the defense of its accused-employee, may
appeal the judgment of conviction independently of the accused.

Held:
No. It is well-established in our jurisdiction that the appellate court may, upon motion or motu
proprio, dismiss an appeal during its pendency if the accused jumps bail. This rule is based on the
rationale that appellants lose their standing in court when they abscond.
2000 Rules of Criminal Procedure has clarified what civil actions are deemed instituted in a criminal
prosecution. When a criminal action is instituted, the civil action for the recovery of civil liability arising
from the offense charged shall be deemed instituted with the criminal action unless the offended
party waives the civil action, reserves the right to institute it separately or institutes the civil action
prior to the criminal action.
Only the civil liability of the accused arising from the crime charged is deemed impliedly instituted in
a criminal action; that is, unless the offended party waives the civil action, reserves the right to
institute it separately, or institutes it prior to the criminal action. Hence, the subsidiary civil liability of
the employer under Article 103 of the Revised Penal Code may be enforced by execution on the basis
of the judgment of conviction meted out to the employee.
What is deemed instituted in every criminal prosecution is the civil liability arising from the crime or
delict per se, but not those liabilities arising from quasi-delicts, contracts or quasi-contracts. In fact,
even if a civil action is filed separately, the ex delicto civil liability in the criminal prosecution remains,
and the offended party may -- subject to the control of the prosecutor -- still intervene in the criminal
action, in order to protect the remaining civil interest therein.

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The cases dealing with the subsidiary liability of employers uniformly declare that, strictly speaking,
they are not parties to the criminal cases instituted against their employees. Although in substance
and in effect, they have an interest therein, this fact should be viewed in the light of their subsidiary
liability. While they may assist their employees to the extent of supplying the latter’s lawyers, as in
the present case, the former cannot act independently on their own behalf, but can only defend the
accused.
As a matter of law, the subsidiary liability of petitioner now accrues. Under Article 103 of the Revised
Penal Code, employers are subsidiarily liable for the adjudicated civil liabilities of their employees in
the event of the latter’s insolvency. Thus, in the dispositive portion of its decision, the trial court need
not expressly pronounce the subsidiary liability of the employer. In the absence of any collusion
between the accused-employee and the offended party, the judgment of conviction should bind the
person who is subsidiarily liable. In effect and implication, the stigma of a criminal conviction surpasses
mere civil liability.
To allow employers to dispute the civil liability fixed in a criminal case would enable them to amend,
nullify or defeat a final judgment rendered by a competent court. By the same token, to allow them
to appeal the final criminal conviction of their employees without the latter’s consent would also
result in improperly amending, nullifying or defeating the judgment. The decision convicting an
employee in a criminal case is binding and conclusive upon the employer not only with regard to the
former’s civil liability, but also with regard to its amount. The liability of an employer cannot be
separated from that of the employee.
The subsidiary liability of petitioner is incidental to and dependent on the pecuniary civil liability of
the accused-employee. Since the civil liability of the latter has become final and enforceable by reason
of his flight, then the former’s subsidiary civil liability has also become immediately enforceable.
Respondent is correct in arguing that the concept of subsidiary liability is highly contingent on the
imposition of the primary civil liability.

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