By J. Portia Aliño-Hormachuelos
There is no question that it is the judiciary's task to effect compliance and
enforcement of all laws, be they civil, criminal or administrative. The courts contribute to the
protection and preservation of the environmental laws, in keeping with our paramount function
of upholding the rule of law, not necessarily to indulge a bias in favor of environmental protection.
For indeed there is no dearth of environmental legislation in countries all over the
world after the United Nations Conference in 1972 on the Environment in Stockholm, Sweden. The
U.N. Conference delineated the following to be protected: 1) the natural resources of the earth
including the air, water, land, flora and fauna and special representative samples of natural
ecosystems; 2) the capacity of the earth to produce vital renewable resources; 3) the heritage of
wildlife and its habitat; and 4) the non-renewable resources of the earth.
The Philippines consists of 7,107 islands in the Pacific. It covers a total of 300,000
square kilometers in area, 30 million hectares of land, and has a population of 88,077,287. It is
home to so much plant and animal life as to make it one of the 17 mega-diversity countries in the
world.These 17 mega-diversity countries are: 1. Australia; 2. Brazil; 3. China; 4. Colombia;
5. Democratic Republic of Congo; 6. Ecuador; 7. India; 8. Indonesia; 9. Madagascar; 10. Malaysia;
11. Mexico; 12. Papua New Guinea; 13. Peru; 14. Philippines; 15. South Africa; 16. USA; 17.
Venezuela. Between them, these countries contain 70-80% of global biodiversity. Biodiversity
refers to the totality of life forms and the areas they occupy.
In our Constitution, environmental protection is focused as a State Policy. The
Constitution declares: The State shall protect and advance the right of the people to a balanced
and healthful ecology in accord with the rhythm and harmony of nature. Based on this Policy, the
much discussed decision on the principle of “intergenerational responsibility” penned by then
Associate Justice now Retired Chief Justice and Ambassador to the United Nations Hilario G. Davide,
Jr., ruled that children, representing themselves and generations yet unborn, have the right and
legal personality to sue in a court of law by way of a class suit in order to protect their environment.
Also based on this constitutional policy, we have a veritable legal arsenal for the
environment, among them such laws as the National Integrated Protected Areas System Act,
Forestry Code, Fisheries Code, Clean Air Act, Solid Waste Management Act, Clean Water Act,
Marine Pollution Decree, Philippine Mining Act, Wildlife Resources Conservation and Protection Act,
and several others.
All these dispel the traditional view of the law as merely a regulator of the affairs
of men for the peaceful enjoyment of communal living, and the role of the courts, to make law
relevant to society. Because our world has become so complex and we have been made aware that
there are so many other denizens in our planet earth with which we humans interrelate, interact and
are interdependent upon, our laws now take into account all the other creatures of this world, not
just human beings. Our laws reflect the reality that, as living things, we are all part of a web of
dependency that makes up the environment. We humans are not separate from the environment
but are part of it. And more compelling is the fact that if we destroy the environment, we destroy
ourselves as well.
Hence in relation to the environment, we see the role of the courts as guardians
of the law in civil, criminal and administrative proceedings to the end that the courts are or become
1. in protecting society's interest;
2. in safeguarding human health; and
3. in protecting the natural environment for the present and
A noted academician, Dean Burton Laub of the Pennsylvania State University once
posited that the principal role of judges in the face of physical and other challenges brought about
by a changing society is to adjust the application of the law to mankind's two principal aspirations
which are: First, SURVIVAL; the Second, THE GOOD LIFE, in
that order of importance. I fully agree.
If the law is to have any meaning, it must be to first lean towards our common
SURVIVAL rather than the establishment or maintenance of individual rights.
For indeed, rights are meaningless if the arena in which they are practiced is lost or destroyed.
We are all stakeholders in this planet. The earth is our only home. The question of ensuring its
survival is addressed to all of us, but especially to those of us who serve in the courts of law since
we are in a unique position to contribute to the preservation of our common HOME by interpreting
and applying environmental laws in a bold and informed manner.
LEGAL SANCTIONS FOR COMPLIANCE AND ENFORCEMENT OF
In many laws, such as those that guard against the destruction of forests, fisheries,
marine reserves, parks, wildlife and protected areas, judicial power is called upon in connection with
the following procedures:
1. arrest of the offender or the abatement of environmental violations by
companies or corporations;
2. search and seizure of objects of the offense such as wildlife, forest
products, heritage items, illegally caught fish; and the instruments used in the commission of
3. prosecution and trial of the violators;
4. judgment, sentencing, or penalization such as imprisonment,
fines, (criminal or administrative) and closure of offending factories, buildings, etc.;
5. corrections, which involve indemnification or restitution.
Needless to say, these procedures are within our wherewithal as magistrates in the
exercise of judicial power.
Our work is clearly not without its challenges. Some of these are the following:
1. Judicial Neutrality: As jurists, two considerations apparently
stand in our path towards the objective of contributing to the preservation of our environment while
still keeping true to our role as impartial judges:
1). One is the “passive” character of the Courts and
2). The second is judicial neutrality.
2. “Live and Let Live”: Another challenge is the very human
tendency of judges to err on the side of mercy in the evaluation and even in the imposition of
sanctions in environmental violations.
3. Court docket congestion: Courts everywhere
are heavily burdened by clogged dockets. However, and this I address to the judges of our
environmental courts; it is imperative that environmental cases be prioritized not only because of the
exemplary value of an early resolution of an environmental issue but also because of the usually
perishable or evanescent quality of the corpus delicti. Delay also results in an attitude of apathy and
indifference among law enforcers, especially those harassed with lawsuits.
4. Evidentiary considerations : The quantum and
quality of the evidence presented to support a case may be a nightmare to the jurist. In criminal
cases, prosecutors despair of the lack of technical skill and resources in evidence-gathering on the
part of the law enforcers. This is often fatal since the strength of the evidence required for
conviction in criminal cases is proof beyond reasonable doubt.
5. Who will protect the protectors? A question
frequently asked by enforcers or advocacy groups is: “who will protect the environmental
protectors?” It is not uncommon for them to be slapped with harassment suits which force them to
dig into their own pockets to hire lawyers for their defense. The public attorneys cannot represent
them since they do not qualify under the minimal or no income requirement for government free
This is being addressed by recent legislation requiring the prosecutor, or the court
if the case has been filed, to immediately make a determination if the case is filed for harassment
purposes (called “SLAPP suits”), in which case the suit must be dismissed and attorney's fees and
THE BIG QUESTION
The big question addressed to the environmental courts or those in the appellate
courts reviewing environmental cases is whether we possess the resolve to practice selective
discrimination by way of strict application of environmental laws – and thus SURVIVE – or whether
we shall kowtow to private interests out of a mistaken sense of the mercy or accommodation-and
DIE in the process, having carelessly allowed the depletion of the very resources on which we
depend to live.
Humanity's unquenchable thirst for survival, peace, justice, and the good life will
impress itself more and more on the judiciary. By electing to survive, and thereby applying the laws
to that end and surmounting the challenges that confront us, we in the courts fulfill our role as
protectors of our world for present and future generations.