4th Session_Writ of Kalikasan_Dir.perez
Transcript of 4th Session_Writ of Kalikasan_Dir.perez
-
8/13/2019 4th Session_Writ of Kalikasan_Dir.perez
1/39
Rules of Procedure for Environmental Cases Rules of Procedure for Environmental Cases 2 2nn ationa PAMB Summit ationa PAMB Summit
April 27 April 27--28, Monte Vista Resort, Calamba Laguna 28, Monte Vista Resort, Calamba Laguna
Atty Asis G PerezIn-Country Representative
US Department of the Interior
-
8/13/2019 4th Session_Writ of Kalikasan_Dir.perez
2/39
Our countrys rich
natural resources is underser ous r s
-
8/13/2019 4th Session_Writ of Kalikasan_Dir.perez
3/39
Marine resources are heavily stressed by- .
forest cover in the Philippines has been
re uce over e as or y years
The loss of forests and other habitats is
threatening the Philippines rich biodiversity
Unregulated waste disposal
-
8/13/2019 4th Session_Writ of Kalikasan_Dir.perez
4/39
Several notable efforts are currently being done by the in
the areas of proper resource utilization, protection and.
these efforts starting with detection, apprehension,confiscation rosecution and finall ad udication wherewe will focus on the Special Environment Courts and the
Rule of Procedure for Environmental Cases, recentlypromulgated by the Supreme Court.
-
8/13/2019 4th Session_Writ of Kalikasan_Dir.perez
5/39
1. ENVIRONMENTAL LAW ENFORCEMENT (ELE)-- , .
Attended by over 150 enforcement and regulatory
Provided clear dia nosis of roblems on EnvironmentLaw Enforcement
Crafted a clear vision for ELE in 5 years
-
8/13/2019 4th Session_Writ of Kalikasan_Dir.perez
6/39
1. ENVIRONMENTAL LAW ENFORCEMENT (ELE)-- , .
Described En ironmental La Enforcement in theescribed Environmental Law Enforcement in thePhilippines as:
W keak
Fragmented
InsufficientIneffective
Inadequate
Ni g K gingas Kugon
-
8/13/2019 4th Session_Writ of Kalikasan_Dir.perez
7/39
1. ENVIRONMENTAL LAW ENFORCEMENT SUMMIT
Challenges related to environmental law enforcementhallenges related to environmental law enforcement
Lack of Coordination
Inadequate funds logistics g
Lack of trained manpower
Policy gaps
Strong political interventionNeed for improved public education compliance
Inadequate legal support
Low prioritization among concerned agenciesLGU roles not fully tapped
Some enforcers are in cahoots with violators
-
8/13/2019 4th Session_Writ of Kalikasan_Dir.perez
8/39
1. ENVIRONMENTAL LAW ENFORCEMENT SUMMIT
In 5 years time, we envisiona we -coor na e , we -funded environmental lawenforcement community
consist ing of highly-trainedand dedicated public andprivate individuals andinstitutions enforcing awell-defined set of laws.
-
8/13/2019 4th Session_Writ of Kalikasan_Dir.perez
9/39
Agreed Action Points
Standardization of enforcement protocols
Creation of Enforcement Task Forces
Reactivation of multi-sectoral bodies/
agencies
Institutionalization of reward for informers/
1/10/2013
-
8/13/2019 4th Session_Writ of Kalikasan_Dir.perez
10/39
ELE SPECIFIC PLANS
enforcers by a training center/institute
reng en mec an sms or ega supporand case presentation
-
8/13/2019 4th Session_Writ of Kalikasan_Dir.perez
11/39
. Administrative Order No. 23-2008
Designation of 114 Branches from thesingle sala Courts as SpecialEnvironmental Court or Green Courts to
ear an ec e nv ronmen a ases.
violations of environmental laws
-
8/13/2019 4th Session_Writ of Kalikasan_Dir.perez
12/39
2. Green Courts
Cases falling on Green Courts:
aws re a e o ores an ro ec e reas.
Laws related to Fisheries and Marine Resources.
Laws related to mines & other resource extraction.
Law related to pollution and waste
Laws related to bio-fuels and renewable energy
development and utilization of natural resources
-
8/13/2019 4th Session_Writ of Kalikasan_Dir.perez
13/39
3. Rule of Procedure for Environmental Cases
This Rule shall govern the procedure in Civil, Criminal andS ecial Civil Action before the trial courts desi nated to tr
And decide cases involving enforcement or violations of
Environmental lawCreation of the Technical Working GroupDraft was submitted for consultation during
the EJ ForumComments in the EJ Forum were
Draft was submitted to the Supreme Court-
Committee Chaired the Chief Justice
-
8/13/2019 4th Session_Writ of Kalikasan_Dir.perez
14/39
. Sub-committee on the Rule of Procedure for Environmental Cases
emoran um r er o. -
A review committeeChairperson : Chief Justice Reynato S. PunoMembers: Justice Presbitero J. Velasco
Justice Lucas P. BersaminUsec. Mary Ann Lucille L. Sering, DENR
u ge a ae . agos, r.Provincial Prosecutor Anthony A. Foz
-. . ,
-
8/13/2019 4th Session_Writ of Kalikasan_Dir.perez
15/39
The Rules of Procedure forhe Rules of Procedure forEnvironmental Casesnvironmental Cases
-
8/13/2019 4th Session_Writ of Kalikasan_Dir.perez
16/39
Objectives of the Draft Rule
To protect and advance the right ofpeop e o ea an a ance eco ogy.
Simplify and make procedureinexpensive for the implementation of
recautionar rinci leEnsure just and equitable administration
environmental lawsEnable courts to manage and monitorenvironmental cases
-
8/13/2019 4th Session_Writ of Kalikasan_Dir.perez
17/39
Guidelines in Drafting the Rule
Rule must reflect the liberalized standingrequirements for plaintiff in
environmental suitRule should shape procedural elements
precautionary principleu e u v e e v
necessary for disposition ofenv ronmen a us ce
-
8/13/2019 4th Session_Writ of Kalikasan_Dir.perez
18/39
Salient Features:Liberalized Standing.
ec. . o may e. - ny rea par y n n eres nc u ng egovernment, and juridical entities authorized by law may filea civil action involving the enforcement and violation ofEnvironmental law
. . . others, including minors or generations yet unborn, may filean action to enforce rights and obligations underenv ronmen a aw.
shall served as first lien on the judgment award
-
8/13/2019 4th Session_Writ of Kalikasan_Dir.perez
19/39
Salient Features:Proceeding Summary in Nature:
Sec. 1. Pleadings and motions allowed are complaint, answer,cross claim, motion for intervention, motions and discoverand motion for reconsideration
ec. . ea ngs a are pro e nc u e o on o sm ss,Motion for bill of particulars, Motion for extension of time tofile pleadings, Petition for Certiorari, prohibition, mandamusvs. interlocutory order, Motion to declare defendant indefault, Motion for postponement, Reply and rejoinder, third
art com laint.
-
8/13/2019 4th Session_Writ of Kalikasan_Dir.perez
20/39
Salient Features:Proceeding Summary in Nature:
Both Complaint and Answer must include affidavits
. .
material evidence affidavit of witnesses, documentaryevidence and object evidence
Sec. 11 The defendant shall attached affidavits ofwitnesses documentar evidence and if racticable ob ectevidence
-
8/13/2019 4th Session_Writ of Kalikasan_Dir.perez
21/39
Salient Features:Proceeding Summary in Nature:Continuous Trial, Direct Examination and
Disposition
Sec. 1. Conduct of continuous trial not to exceed 3 months
Sec. 2 Affidavit In lieu of direct examination
Sec. 3 One day examination of witness rule
ec. ne year o ec e e case
-
8/13/2019 4th Session_Writ of Kalikasan_Dir.perez
22/39
Salient Features: Application of Precautionary Principle:Precautionary principle was adopted to address what isgenerally perceived as a procedural obstacle inenvironmental liti ation. Under Rule 16 Sec.1:
Sec. 1. Precautionary Principle.- The court shall be guided by
precautionary principle and evidence of full scientificcertainty shall not be required from the party allegingenvironmental dama es or threats thereof.
-
8/13/2019 4th Session_Writ of Kalikasan_Dir.perez
23/39
Salient Features: Application of Precautionary Principle:Precautionary principle shall be applied in cases wherehuman activities may lead to morally unacceptable harm thatis scientificall lausible but uncertain. In which case actionsshall be taken to avoid or diminish the harm.
ora y unaccep a e arm re ers o arm o uman or oenvironment that is: threatenin human life or health; serious and effectively irreversible;
inequitable to present and future generation; imposed without adequate consideration of human rightsof those affected.
-
8/13/2019 4th Session_Writ of Kalikasan_Dir.perez
24/39
Novel ProvisionsEnvironmental Protection Order (EPO)
An EPO is an order issued b the court directin or en oinin a person or government agency to perform or desist from
performing an act in order to protect, preserve or rehabilitate.
This is effective for 72 hours from notice to the party
enjoined;
Ma be lifted an time b the issuin Court.
No bond is required of the applicant.
-
8/13/2019 4th Session_Writ of Kalikasan_Dir.perez
25/39
Novel ProvisionsNO TRO against GRP agency enforcing
.
Courts are rohibited from issuin TRO or PreliminarInjunction against government agencies actions thatenforces environmental law or prevent violations thereof.
Except in cases of extreme urgency involving constitutionalissue that will result into grave injustice and irreparableinjury
performance of duty by government officials
-
8/13/2019 4th Session_Writ of Kalikasan_Dir.perez
26/39
-
8/13/2019 4th Session_Writ of Kalikasan_Dir.perez
27/39
Novel Provisions
ecogn on o genc es u es ncustody and immediate disposal ofseized items, equipment, paraphernalia..
Custody and disposition of seized items shall be inaccordance with the applicable rules of the concernedgovernment agency
Upon proper motion, the court where the criminal case ispen ng, s a ssue an or er rec ng e sa e, auc on ordisposition of the confiscated items, tools or equipment
Proceeds of the sale shall be deposited in a governmentdepository bank, until final disposition
-
8/13/2019 4th Session_Writ of Kalikasan_Dir.perez
28/39
Requirement of consent by concernedgovernment agencies in case of pleabar ainin :Rule 12, Section 1. ..set the arraignment within 10 days with notice to the ublic rosecutor and offended art or
concerned government agency
Rule , ec .,.. issue an order requiring the privateoffended party or the concerned government agency to
appear for the purpose of plea bargaining
-
8/13/2019 4th Session_Writ of Kalikasan_Dir.perez
29/39
Participation (SLAPP)
actions whether civil, criminal or administrative,,government agency with intent to harass, vex,exert undue ressure or stifle the le al resource of
that person has taken or may take in theenforcement of environmental laws or protection ofenvironmental harm
-
8/13/2019 4th Session_Writ of Kalikasan_Dir.perez
30/39
-
8/13/2019 4th Session_Writ of Kalikasan_Dir.perez
31/39
Writ of Kalikasan
. Ma be filled with the Su reme Court or an stations of the Court of Appeals
. B natural or uridical ersons or in behalf ofcommunity or other group
. Whose constitutional right to environment is
violated or threatened with violation... By an unlawful act or omission of the respondent. Involving environmental damage of such
magnitude as to prejudice health, life, or property. Of two or more cities or provinces
-
8/13/2019 4th Session_Writ of Kalikasan_Dir.perez
32/39
Writ of Kalikasan
. Petition is verified with all the affidavits, documentaryevidence and other evidence available attached
. Writ is issued after 3 days from date of filing, if sufficient in
form and substance... Respondent shall file a return within 10 daysshowing
denial and all defenses.
. Failure of respondent to file return court shall proceedto here the case ex-parte. ar es s a es a s e e r c a ms y su s an a
evidence..
.applicable laws, rules and regulations was observed in theperformance of duty
-
8/13/2019 4th Session_Writ of Kalikasan_Dir.perez
33/39
Writ of Kalikasan (Rule 7)
e e ava a e un er e r :
. Cease and desist from committing acts oromissions in violation of environmental laws
... Directing respondent to preserve, rehabilitate and
. Directing respondent to monitor compliance withorders of the court..
. Directing respondent to make periodic report on
the execution of the final judgment.Other relief related to protection of peoples right
to health
WRIT OF CONTINUING MANDAMUS
-
8/13/2019 4th Session_Writ of Kalikasan_Dir.perez
34/39
WRIT OF CONTINUING MANDAMUS
SECTION 1. Petition for continuin mandamus.When an
agency or instrumentality of the government or officer thereof unlawfully neglects the performance of an act which the law
,station in connection with the enforcement or violation of anenvironmental law rule or re ulation or a ri ht therein or unlawfullexcludes another from the use or enjoyment of such right and thereis no other plain, speedy and adequate remedy in the ordinarycourse o aw, e person aggr eve ere y may e a ver epetition in the proper court, alleging the facts with certainty,
concerns an environmental law, rule or regulation, and praying that
judgment be rendered commanding the respondent to do an act orseries of acts until the judgment is fully satisfied, and to paydamages sustained by the petitioner by reason of the malicious
, ,
or regulations. The petition shall also contain a sworn certification ofnon-forum shopping.
SEC 2 Wh t fil th titi Th titi h ll b fil d
-
8/13/2019 4th Session_Writ of Kalikasan_Dir.perez
35/39
SEC. 2. Where to file the petition.The petition shall be filedwith the Regional Trial Court exercising jurisdiction over the
territory where the actionable neglect or omission occurred orwith the Court of Appeals or the Supreme Court.
. . o oc e ees. e pe oner s a e exemp romthe payment of docket fees.
. . .and substance, the court shall issue the writ and require therespondent to comment on the petition within ten (10) days from
receipt of a copy thereof. Such order shall be served on therespondents in such manner as the court may direct, togetherw a copy o e pe on an any annexes ere o.Rules of Procedure for Environmental Cases 29
. . .the petition is filed may issue such orders to expedite theproceedings, and it may also grant a TEPO for the preservationof the rights of the parties pending such proceedings.
SEC 6 Proceedings after comment is filed After the comment
-
8/13/2019 4th Session_Writ of Kalikasan_Dir.perez
36/39
SEC. 6. Proceedings after comment is filed.After the commentis filed or the time for the filing thereof has expired, the court may
hear the case which shall be summary in nature or require theparties to submit memoranda. The petition shall be resolved
submission of the petition for resolution.
SEC. 7. Judgment.If warranted, the court shall grant theprivilege of the writ of continuing mandamus requiring respondentto perform an act or series of acts until the judgment is fullysatisfied and to grant such other reliefs as may be warranted
.court shall require the respondent to submit periodic reports
detailin the ro ress and execution of the ud ment and thecourt may, by itself or through a commissioner or the appropriategovernment agency, evaluate and monitor compliance. Thepetitioner may submit its comments or observations on theexecution of the judgment.
-
8/13/2019 4th Session_Writ of Kalikasan_Dir.perez
37/39
SEC. 8. Return of the writ.The periodic reports submitted bythe respondent detailing compliance with the judgment shall be
.the judgment, a final return of the writ shall be made to the court
.fully implemented, the satisfaction of judgment shall be enteredin the court docket.
-
8/13/2019 4th Session_Writ of Kalikasan_Dir.perez
38/39
-
8/13/2019 4th Session_Writ of Kalikasan_Dir.perez
39/39
Thank You