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If Cases Are Filed: The Role Of The Judiciary In Biodiversity Conservation

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 instruments:

1.   in protecting society's interest;
2.   in safeguarding human health; and
3.   in protecting the natural environment for the present and future generations.

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 ENVIRONMENTAL LAWS

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 the offense;
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 legal assistance.

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 damages awarded.

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.




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