The Illusion of Intergenerational Equity: Oposa v. Factoran as Pyrrhic Victory By: Dante B. Gatmaytan
I. INTRODUCTION One of the most famous and celebrated cases in the history of the Philippine Supreme Court is Oposa v. Factoran.1 For almost a decade now, Oposa has continued to earn praises as a significant decision in environmental protection. The case was unorthodox even in its inception: children from all over the country filed a case to compel the Secretary of the Department of Environment and Natural Resources (DENR) to cancel all existing Timber License Agreements (TLA) and to prevent him from renewing or processing any new applications. The suit was based on the novel theory of "intergenerational justice" - the children claimed that they represented not only their generation, but also "generations yet unborn."2 Oposa has attained what might be called celebrity status. It is cited as a "significant," "innovative" case, "likely to become something of a landmark in the jurisprudence of sustainable development."3 According to one author, the Philippines Supreme Court "announced a powerful and influential exposition of intergenerational rights in the context of environmental protection."4 Oposa is virtually vi rtually a staple of o f international environmental law scholarship,5 which is rarely critical of the case.6 This interest, however, is actually generated only in the international arena and not in the Philippines. Antonio Oposa, Jr., the Counsel for the petitioners in the case, acknowledged as much when he presented his assessment of impact of the case: Although hardly known in the country's legal community, the case has been the subject of extensive citation, analysis, and comment in international law circles. Perhaps because it is the first case decided by the highest court of a country which discussed and implemented what had heretofore been a rhetorical call for responsibility to future generations for the world's natural resources. Furthermore, it brings to the fore - in the personal voice of our children - the imminent likelihood that our generation's wanton use of the earth's resources will inevitably adversely impact our children's generation and generations yet unborn.7 The incongruent reception of Oposa may be due to the fact that the international legal community misunderstands the case. In contrast to this dominant interpretation, this Article will show that Oposa adds barely anything new either to Philippine jurisprudence or to the cause of environmental protection, and that it has faded from the practice of law because it does not strengthen the legal arsenal for environmental protection. In this Article, I wish to show that Oposa is overrated for several reasons. First, Oposa, for all the praise it has earned, did not affect government conduct in the protection of the environment. The Supreme Court did not order the cancellation of the TLAs, but ordered the case to be remanded for trial. Because the petitioners did not pursue the case after it was remanded, no TLA was cancelled.
Second, while many point to the case as one that recognizes standing to sue for future generations,8 the Court's statement to that effect is obiter dictum therefore, not binding as precedent. Only a few correctly point out that the case recognizes a cause of action for environmental protection.9 Third, even if "standing" had been an issue before the Supreme Court, Philippine case law has always adopted a liberal approach to questions pertaining to standing to sue. The Supreme Court, by relying on case law, could have either assumed the existence of the children's standing to sue or waived the requirement completely. Fourth, the use of "intergenerational equity" - invoking the rights of future generations - while intellectually titillating, is ultimately useless in the resolution of the case. The Philippine Supreme Court would have decided Oposa exactly the same way had the children filed the case solely on their own behalf. In cases involving the protection of the environment, the distinction between present and future generations is inconsequential - we cannot protect the rights of future generations without protecting the rights of the present. Fifth, the protection of the rights of future generations was already inscribed in Philippine law and jurisprudence even before the ratification of the 1987 Constitution and the promulgation of Oposa. Finally, I want to show that despite these shortcomings, Oposa should ultimately be celebrated, not because of the Supreme Court's remarks about intergenerational responsibility and standing to sue for future generations, but because it held that the constitutional provision on the right to a balanced and healthful ecology is an actionable right that is superior to the Bill of Rights. Oposa remains a potential tool, although its possible uses seem to elude advocates of environmental protection. II. THE CASE A. THE TRIAL COURT DECISION Oposa v. Factoran was a taxpayers' class suit originally filed with the Regional Trial Court of Makati City. The petitioners were minors represented and joined by their parents and the Philippine Environmental Network, Inc., a non-profit corporation organized for the purpose of concerted action geared for the protection of the environment and natural resources. The children claimed that they were "entitled to the full benefit, use, and enjoyment of the natural resource treasure that is the country's virgin tropical rainforests."10 As such, they prayed that judgment be rendered ordering the Secretary of Environment and Natural Resources, his agents, representatives, and other persons acting on his behalf to cancel all existing timber license agreements11 in the country and to desist from receiving, accepting, processing, renewing, or approving new timber license agreements.12 The defendant filed a motion to dismiss the petition on the grounds that (a) the plaintiffs had no cause of action against him; and (b) the issue raised by the plaintiffs was a political question that should be addressed to the legislative or executive branch of the Government.
The trial court granted the motion and held that: After a careful and circumspect evaluation of the complaint, the Court cannot help but agree with the defendant. For although we believe that the plaintiffs have but the noblest of all intentions, it [sic] fell short of alleging, with sufficient definiteness, a specific legal right they are seeking to enforce and protect, or a specific legal wrong they are seeking to prevent and redress (Sec. 1, Rule 2, RRC). Furthermore, the Court notes that the Complaint is replete with vague assumptions and vague conclusions based on unverified data. In fine, plaintiffs fail to state a cause of action in its [sic] complaint against the h erein defendant. Furthermore, the Court firmly believes that the matter before it, being impressed with political color and involving a matter of public policy, may not be taken cognizance of by this Court without doing violence to the sacred principle of 'Separation of Powers' of the three (3) co-equal branches of the Government.13 The trial court added that to grant the relief prayed for would amount to an "impairment of contracts," in the belief that TLAs are contracts, which are protected under the non-impairment clause of the Constitution.14 The children then filed a petition for certiorari with the Supreme Court asking it to set aside the trial court's order dismissing the case.15 In essence, the petition raised three issues before the Supreme Court: (a) whether the plaintiffs had a cause of action; (b) whether the issue involved a political question over which the Supreme Court could not assume jurisdiction; and (c) whether a timber license agreement is a contract protected by the non-impairment clause of the Constitution. B. THE SUPREME COURT DECISION Before the Supreme Court addressed these issues, it decided to "focus on some procedural matters,"16 despite the fact that the respondents "did not take issue with this matter."17 Nevertheless, the Court stated that the children's case receiving, accepting, processing, renewing, or approving new timber license agreements.12 The defendant filed a motion to dismiss the petition on the grounds that (a) the plaintiffs had no cause of action against him; and (b) the issue raised by the plaintiffs was a political question that should be addressed to the legislative or executive branch of the Government. The trial court granted the motion and held that: After a careful and circumspect evaluation of the complaint, the Court cannot help but agree with the defendant. For although we believe that the plaintiffs have but the noblest of all intentions, it [sic] fell short of alleging, with sufficient definiteness, a specific legal right they are seeking to enforce and protect, or a specific legal wrong they are seeking to prevent and redress (Sec. 1, Rule 2, RRC). Furthermore, the Court notes that the Complaint is replete with vague assumptions and vague conclusions based on unverified data. In fine, plaintiffs fail to state a cause of action in its [sic] complaint against the herein d efendant.
Furthermore, the Court firmly believes that the matter before it, being impressed with political color and involving a matter of public policy, may not be taken cognizance of by this Court without doing violence to the sacred principle of 'Separation of Powers' of the three (3) co-equal branches of the Government.13 The trial court added that to grant the relief prayed for would amount to an "impairment of contracts," in the belief that TLAs are contracts, which are protected under the non-impairment clause of the Constitution.14 The children then filed a petition for certiorari with the Supreme Court asking it to set aside the trial court's order dismissing the case.15 In essence, the petition raised three issues before the Supreme Court: (a) whether the plaintiffs had a cause of action; (b) whether the issue involved a political question over which the Supreme Court could not assume jurisdiction; and (c) whether a timber license agreement is a contract protected by the non-impairment clause of the Constitution. B. THE SUPREME COURT DECISION Before the Supreme Court addressed these issues, it decided to "focus on some procedural matters,"16 despite the fact that the respondents "did not take issue with this matter."17 Nevertheless, the Court stated that the children's case satisfied the requisites of a valid class suit under the Rules of Court.18 The Court then proceeded to discuss a "special and novel"19 element of the suit: the plaintiffs' assertion that they represented their generation, as well as gene rations yet unborn. The Court accommodated this position, stating: We find no difficulty in ruling that they can, for themselves, for others of their generation and for the succeeding generations, file a class suit. Their personality to sue in behalf of the succeeding generations can only be based on the concept of intergenerational responsibility insofar as the right to a balanced and healthful ecology is concerned. Such a right, as hereinafter expounded, considers the "rhythm and harmony of nature." Nature means the created world in its entirety. Such rhythm and harmony indispensably include, inter alia, the judicious disposition, utilization, management, renewal and conservation of the country's forest, mineral, land, waters, fisheries, wildlife, off-shore areas and other natural resources to the end that their exploration, development and utilization be equitably accessible to the present as well as future generations. Needless to say, every generation has a responsibility to the next to preserve that rhythm and harmony for the full enjoyment of a balanced and healthful ecology. Put a little differently, the minors' assertion of their right to a sound environment constitutes, at the same time, the performance of their obligation to ensure the protection of that right for the generations to come.20 The Supreme Court said that the right to a balanced and healthful ecology also created an obligation for every person to preserve the environment. It is this obligation that is the basis of any citizen's standing to sue.
In short, the Supreme Court said that the petitioners' suit was a valid class suit, and that the petitioners had standing to sue for themselves and future generations, although the petitioners' case raised neither issue. Only then did the Court "proceed to the merits of the petition."21 1. Did The Plaintiffs Have a Cause of Action? The Supreme Court disagreed with the lower court and stated that the complaint focused on the right to a balanced and healthful ecology. The Constitution provides that "[t]he 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."22 The Court explained that while this provision is found under the Declaration of Principles and State Policies, and not the Bill of Rights, it does not follow that it is less important than any of the civil and political rights enumerated in the latter. Such a right belongs to a different category of rights altogether for it concerns nothing less than self preservation and self-perpetuation - aptly and fittingly stressed by the petitioners - the advancement of which may even be said to predate all governments and constitutions. As a matter of fact, these basic rights need not even be written in the Constitution for they are assumed to exist from the inception of humankind.23 The Court went on to explain that the right to a balanced and healthful ecology carries with it a correlative duty to refrain from impairing the environment. The right implies the judicious management and conservation of the country's forests.24 The Court further observed that provisions of Executive Order No. 192, series of 1987, (creating the DENR)25 and the Administrative Code of 1987 declare it to be the policy of the State to ensure the sustainable use, development, management, renewal, and conservation of the country's forest.26 Both laws, said the Court, set these objectives, which provide the basis of policy formulation.27 It also pointed out that decrees issued prior to the ratification of the 1987 Constitution, such as the Philippine Environmental Policy28 and the Philippine Environment Code,29 already paid attention to the environmental rights of present and future generations.30 After a reading of these laws, the Court concluded that the right to a balanced and healthful ecology is as clear as the DENR's duty to protect and advance said right. It found that a denial or violation of that right by the party who has the correlative duty or obligation to respect or protect the same gives rise to a cause of action.31 2. Were the Issues Raised Political Questions? The Supreme Court likewise disagreed with the trial court's finding that the issue in this case involved a political question, which would have been beyond the jurisdiction of the Supreme Court. It said: "Policy formulation or determination by the executive or legislative branches of Government is not squarely put in issue. What is principally involved is the enforcement of a right vis-a-vis policies already formulated and expressed in legislation."32 The Court also pointed out that even if the matter were a political question, judicial power has been expanded under the 1987 Constitution to include:
the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.33 Citing jurisprudence, the Supreme Court pointed out that the present Constitution expands judicial review to cover "political questions."34 3. Are TLAs Protected by the Non -Impairment Clause of the Constitution? The Court also said that the timber license agreements were not contracts within the purview of the non-impairment clause of the Constitution, but were only licenses that could be validly withdrawn whenever dictated by public interest or public welfare.35 It further pointed out that even if TLAs were considered contracts, the due process clause could not be invoked because the case did "not involve a law or even an executive issuance declaring the cancellation or modification of existing timber licenses."36 The Court went on to say that even if a law mandated the cancellation of timber license agreements, it would be justified as a police power measure.37 The Supreme Court set aside the order of the trial court granting Secretary Factoran's motion to dismiss. The Court remanded the case for trial, stating that "[t]he petitioners may therefore amend their complaint to implead as defendants the holders or grantees of the questioned timber license agreements."38 C. THE SEPARATE OPINION Ten justices concurred with the majority decision written by Justice Hilario G. Davide, Jr.,39 and three justices took no part in the deliberations.40 In a separate opinion, Justice Florentino Feliciano maintained that Oposa was one of the most important cases decided by the Court in the last few years41 and that the principles laid down in the decision were "likely to influence profoundly the direction and course of the protection and management of the environment . . . ."42 Nevertheless, he took issue with the majority on several points. The gist of his opinion was that neither the petitioners nor the Court had identified a right upon which the petitioners could base their claim. In his view, the constitutional provision on the right to a balanced and healthful ecology may be fundamental, but it is not specific.43 According to Justice Feliciano, all the laws cited by the Court to show the existence of a cause of action, such as Executive Order No. 192, series of 1987, the Administrative Code, and the Philippine Environmental Policy, "all appear to be formulations of policy, as general and abstract as the constitutional statements of basic policy in Article II, Sections 16 . . . and 15 . . . ."44 On the other hand, he pointed out, the Philippine Environment Code was merely "a compendious collection of more 'specific environment management policies' and 'environment quality standards' . . . . [N]either petitioners nor the Court has identified the particular provision or provisions (if any) of the . . . Code which give rise to a specific legal right which petitioners are seeking to enforce."45 He added that the Code does not "appear to contemplate action on the part
of private persons who are beneficiaries of implementation of that Code," as it only identifies the government agencies charged with the formulation and implementation of guidelines and programs dealing with air, water, land use, and natural resources management.46 In his view, such a specific right might exist in Philippine law, and the plaintiffs should have been afforded an opportunity to identify it, rather than being denied such an opportunity by the trial court granting defendant's motion to dismiss.47 Furthermore, Justice Feliciano pointed out that the Court's approach - combining the substantive standards of the Constitution with the remedy sought by the children (petition for certiorari) would hurl the Supreme Court into social and economic policy-making. He warned that the Court is not prepared to undertake this task because of its lack of special technical competence, experience, and professional qualification in the area of environmental protection and management.48 He also concurred in the result of the decision, but added that "[t]he doctrines set out in the Court's decision issued today should, however, be subjected to closer examination."49 Justice Feliciano's opinion was prompted by an attempt to clarify to himself, "what the Court appear[ed] to be saying."50 Apart from his disagreement regarding the legal basis for the children's petition, Justice Feliciano raised two questions that the Supreme Court had created by its decision: First, since the Court seemed to be recognizing a beneficiaries' right of action in the field of environmental protection, it is unclear whether such a right of action "may be found under any and all circumstances, or whether some failure to act, in the first instance, on the part of the governmental agency concerned must be shown."51 The Court failed to discuss, he pointed out, whether there must be an exhaustion of all administrative remedies before a case may be filed in court for redress of one's environmental rights. Second, since the Court remanded the case to the trial court with an order to implead the holders of TLAs, what then were the holders to litigate about? 52 I understand the Separate Opinion to be a polite reminder to the rest of the Court that the ruling they were promulgating could not be easily implemented. But how exactly would Oposa play out in environmental litigation? As I attempt to show here, Oposa barely creased the legal landscape, raising questions as to why it generates excitement elsewhere in the world but remains obscure in the Philippines. We must, therefore, exert effort to understand what exactly the Court said. III. UNDERSTANDING OPOSA A. TIMBER LICENSE AGREEMENTS WERE NOT CANCELLED It should be stressed that the children wanted the Secretary of the DENR to cancel all TLAs and to desist from processing new applications. My review of Oposa shows that the Supreme Court did not order the cancellation of existing TLAs or issue an order to the DENR to desist from renewing or processing any applications. The case revolved around a procedural question: whether the case was properly dismissed by the regional trial court for petitioners' failure to establish a cause of action. To quote, the Court held:
WHEREFORE, being impressed with merit, the instant Petition is hereby GRANTED, and the challenged Order of respondent Judge of 18 July 1991 dismissing Civil Case No. 90-777 is hereby set aside. The petitioners may therefore amend their complaint to implead as defendants the holders or grantees of the questioned timber license agreements.53 The Court remanded the case to the trial court and ordered the plaintiffs to implead all holders of TLAs as indispensable parties in such further proceedings. The Supreme Court's decision, therefore, was merely an initial step toward the resolution of the case. The Supreme Court reversed the trial court's decision to dismiss the case because the children had a cause of action, the issues raised were not "political questions," and TLAs were not contracts under the contracts clause of the Constitution. As Justice Feliciano pointed out, however, it is not even clear what would have been litigated in the lower court. Even if we knew what they would have litigated, the magnitude of the work required to implead all TLA holders cannot be overstated because this would entail bringing dozens of defendants to court. One might even wonder why persons holding TLAs should be impleaded. If, the Court stated, TLAs are only licenses that could be validly withdrawn whenever dictated by public interest or public welfare, then the Secretary should be allowed to cancel them without impairing their due process rights. In any case, the children did not pursue the case after it was remanded to the trial court. No TLA was ever cancelled pursuant to the Court's ruling in Oposa. Commercial logging continues in the Philippines, and there is nothing that will prevent the DENR from renewing or processing applications for TLAs. Neither the Supreme Court nor the trial court ordered the Secretary to desist from doing so. Put simply, the children initially wanted to stop the practice of issuing TLAs because it impaired their right to a balanced ecology. Since the practice continues, it is difficult to see how Oposa can be construed as a victory for the environment. The most recent data from the DENR's Forest Management Bureau show that as of December 31, 2001, there are still eighteen active TLAs all over the Philippines, covering 813,949 hectares of forestland. There are also two inactive TLAs covering 96,066 hectares, and another eleven suspended TLAs covering another 432,958 hectares.54 Technically, a total of 1,342,962 hectares of forestland are still covered by TLAs. There is nothing to show that the Philippine environment has improved.55 It might be argued that this is still a significant drop in the number of TLAs issued by the DENR,56 but there is no evidence that this reduction is a consequence of the Court's decision in Oposa. In fact, when Fulgencio Factoran served as the Secretary of the DENR, from 1987 to 1992, he did not want to issue any new TLAs and also sought the cancellation of TLAs of companies that failed to comply with government regulations.57 The reduction in the number of TLAs, therefore, was among the thrusts of Factoran's turn at the helm of the DENR even before Oposa was decided. B. THE SUPREME COURT DID NOT RULE ON STANDING TO SUE
As I pointed out at the beginning of this Article, Oposa is often cited for the Court's alleged recognition of the rights of future generations. Strangely, the Supreme Court never made a ruling on this issue, although it did make a ruling on the existence of the children's cause of action. Thus, everything the Court said about standing to sue for future generations is obiter dictum. Perhaps international interest in Oposa may be explained by the fact that "standing to sue" is a huge obstacle for environmental protection advocates in some jurisdictions. The U.S. Supreme Court, for example, has tightened the rules on standing by requiring strict compliance with the "case or controversy" requirement of the Constitution. To be accorded standing, first and foremost, there must be alleged (and ultimately proven) an "injury in fact" - a harm suffered by the plaintiff that is "concrete" and "actual or imminent," and not merely "conjectural" or "hypothetical." Second, there must be causation - a fairly traceable connection between the plaintiff's injury and the complained-of conduct of the defendant. And third, there must be redressability - the likelihood that the requested relief will redress the alleged injur y.58 In contrast, the rules on standing in the Philippines are less stringent. As I will illustrate below, standing in Philippine litigation may either be assumed to exist or may be waived completely under certain circumstances. In the latter case, one does not need standing to litigate. "Standing" and "cause of action" are two different concepts that are governed by separate provisions of the Rules of Court. Standing to sue revolves around the question of who the proper parties are in a suit. The "proper party" requirement is satisfied if it is alleged that petitioners and intervenors have sustained or are in danger of sustaining immediate injury resulting from the acts or measures complained of.59 One who is directly affected by and whose interest is immediate and substantial in the controversy has standing to sue. A party must show a personal stake in the outcome of the case or an injury to himself that can be redressed by a favorable decision, so as to warrant an invocation of the court's jurisdiction and to justify the exercise of the court's remedial powers on his behalf.60 The Rules of Court provide: A real party in interest is the party who stands to be benefited or injured by the judgment in the suit, or the party entitled to the avails of the suit. Unless otherwise authorized by law or these Rules, every action must be prosecuted or defended in the name of the real party in interest.61 In contrast, the Rules of Court define a "cause of action" as "the act or omission by which a party violates a right of another."62 For a cause of action to exist, there must be: (a) a right in favor of the plaintiff, by whatever means and under whatever law it arises or is created; (b) an obligation on the part of the defendant to respect, or not to violate, such right; and (c) an act or omission on the part of said defendant constituting a violation of the plaintiff's right or a breach of the defendant's obligation to the plaintiff.63 Secretary Factoran never challenged petitioners' standing to sue. In his motion to dismiss, he did not allege that the parties had no legal interest in the case or that they were not the proper parties to the suit. Rather, he alleged that petitioners had not identified a specific right that he had allegedly impaired, so as to entitle the children to relief from the courts. The defendant, in short, merely questioned the existence of a cause of action.
Even the Supreme Court was aware of this. In the introductory portions of its decision, the Court explained that the case "touches on the issue of whether the said petitioners have a cause of action to 'prevent the misappropriation or impairment' of Philippine rainforests and 'arrest the unabated hemorrhage of the country's vital life-support systems and continued rape of Mother Earth.' "64 In fact, the Court's entire discussion of standing to sue was preceded by an admission that the respondents "did not take issue with this matter."65 The distinction between standing to sue and cause of action is also emphasized by the fact that the Court resolved both questions on different grounds. The children had standing because they had an obligation "to ensure the protection of that right for the generations to come."66 They had a cause of action because the DENR had a duty to protect and advance their right to a balanced and healthful ecology and the Secretary of the DENR had allegedly violated this right with the continued issuance of TLAs.67 The violation of this right gave rise to a cause of action.68 Had Oposa implicated standing, then the decision would have been significant. Oposa broadens earlier rulings on who are "proper parties" in a suit. In Philippine law, the real party in interest has been restricted to: the party who stands to be benefited or injured by the judgment, or the party entitled to the avails of the suit. "Interest" within the meaning of the rule means material interest, an interest in issue and to be affected by the decree, as distinguished from mere interest in the question involved, or a mere incidental interest . . . .69 Oposa overruled the more restrictive ruling of the Supreme Court in Lozada v. Commission on Elections.70 In that case, the Court denied a petition to review a decision of the Commission on Elections, which had refused to call an election to fill vacancies in the Batasang Pambansa (National Legislature). The Court held that: Petitioners' standing to sue may not be predicated upon an interest of the kind alleged here, which is held in common by all members of the public because of the necessarily abstract nature of the injury supposedly shared by all citizens. Concrete injury, whether actual or threatened, is that indispensable element of a dispute which serves in part to cast it in a form traditionally capable of judicial resolution. When the asserted harm is a "generalized grievance" shared in substantially equal measure by all or a large class of citizens, that harm alone normally does not warrant the exercise of jurisdiction . . . . .... Even his plea as a voter is predicated on an interest held in common by all members of the public and does not demonstrate any injury specially directed to him in particular.71 Oposa recognized standing in the broadest possible sense by including even those who are not yet born - even future citizens who are not persons under Philippine law.72 But the Supreme Court did not have to discuss "standing" because it was never raised as an issue. The pronouncement on standing is obiter dictum as it touched upon a matter that was not raised expressly by the petitioner, and therefore, it was not a prerequisite in disposing of the case.73 In
other cases, the Supreme Court has ruled that a remark made or opinion expressed by a judge in a decision upon a cause, incidentally or collaterally, and not directly upon the question before the court, or upon a point not necessarily involved in the determination of the cause, is obiter dictum, lacks the force of an adjudication, and is not to be regarded as such.74 Obiter dicta are opinions "entirely unnecessary for the decision of the case" and thus "are not binding as precedent."75 Of course, the Philippine Supreme Court has also held that dictum is generally not binding as authority or precedent within the stare decisis rule but may be followed if sufficiently persuasive.76 But until that happens, Oposa's rule on standing has no binding effect on any Philippine court.77 Even if standing to sue for future generations becomes standard legal doctrine, it will not necessarily lead to the protection of the environment. The courts will still have to rule on whether the challenged acts - in this case, the issuance of TLAs - impair the right to a balanced and healthful ecology. The petitioners in Oposa wanted the cancellation of TLAs and a ban on any further processing of TLA applications. If the case had been pursued in the regional trial court, the only way that the children could have prevailed was by convincing the court that the practice of issuing TLAs violates their constitutional right to a balanced and healthful ecology. I doubt that the courts would enjoin certain economic activity simply because the environment is somehow impaired, and I suspect that they would be at a loss to determine what standard to use before any such action can prevail. In fact, a defendant in such a case might remind the courts that Article XII of the Constitution provides for the exploitation of the country's natural resources. C. PHILIPPINE RULES ON STANDING ARE LENIENT Even if "standing" had been an issue, Philippine case law is consistent in holding that in similar cases standing may either be assumed or entirely waived by courts. 1. Standing to Sue May Be Assumed Perhaps the respondent did not take issue with the question of standing because it would have been difficult if not impossible to defend such an assertion. Indeed, under the facts of Oposa, the issue of standing could have been simply assumed by the Supreme Court. It will be recalled that the Court concluded that the right to a balanced and healthful ecology "is as clear as the DENR's duty . . . to protect and advance the said right."78 The constitutional provision recognized a right and imposed a duty. The petitioners, therefore, could have filed a special civil action for mandamus to restrain the defendant from further parceling out what is left of the Philippine forests. There are cases in the Philippines that recognize a citizen's interest and personality to procure the enforcement of a public duty and to bring an action to compel the performance of that duty.79 In Tanada v. Tuvera, a case filed to compel publication of Presidential Decrees issued by then-President Ferdinand Marcos, the Court held: [W]hile the general rule is that "a writ of mandamus would be granted to a private individual only on those cases where he has some private or particular interest to be subserved, or some particular right to be protected, independent of that which he holds with the public at large," and
that "it is for the public officers exclusively to apply for the writ when public rights are to be subserved [Mitchell v. Boardmen, 79 M.E., 469 J.]," nevertheless, "when the question is one of a public right and the object of the mandamus is to procure the enforcement of a public duty, the people are regarded as the real party in interest, and the relator at whose instigation the proceedings are instituted need not show that he has any legal or special interest in the result, it being sufficient to show that he is a citizen and as such interested in the execution of the laws [High, Extraordinary Legal Remedies, 3rd ed., [sec] 431]."80 Further, the Court said: Clearly, the right sought to be enforced by petitioners herein is a public right recognized by no less than the fundamental law of the land. If petitioners were not allowed to institute this proceeding, it would indeed be difficult to conceive of any other person to initiate the same, considering that the Solicitor General, the government officer generally empowered to represent the people, has entered his appearance for the respondents in this case.81 In another case, the Court explained, "[w]hen a mandamus proceeding involves the assertion of a public right, the requirement of personal interest is satisfied by the mere fact that the petitioner is a citizen, and therefore, part of the general "public" which possesses the right."82 The situation in Tanada was mirrored in Oposa. The petitioners in Oposa sought the enforcement of a public right recognized by the Constitution - the right to a balanced and healthful ecology and the performance of a public duty on the part of the DENR. Likewise, the Solicitor General entered his appearance for the government. The petitioners were all Filipino citizens and part of the general public. The facts of Oposa, therefore, fit precisely into these established rules, and as such the petitioners could have filed a special civil action for mandamus and cleared the "standing requirement" with ease. 2. Lack of Standing May Be Waived The Philippine Supreme Court adheres to a liberal policy with regards to locus standi. In Kilosbayan, Inc. v. Guingona, the Court said, "[a] party's standing . . . is a procedural technicality which the Court may, in the exercise of its discretion, set aside in view of the importance of the issues raised."83 Standing may be brushed aside when the "transcendental importance to the public of these cases demands that they be settled promptly and definitely, brushing aside, if we must, technicalities of procedure."84 In taxpayers' suits, such as Oposa, the Court "is not devoid of discretion as to whether or not [the issue of standing] should be entertained."85 The cases reiterating the Court's leniency are legion.86 In Kapatiran ng mga Naglilingkod sa Pamahalaang Pilipinas, Inc. v. Tan, the Court once more stated that: Objections to taxpayers' suits for lack of sufficient personality, standing or interest are, in the main, procedural matters. Considering the importance to the public of the cases at bar . . . this Court has brushed aside technicalities of procedure and has taken cognizance of these petitions.87
In Association of Small Landowners in the Philippines, Inc. v. Secretary of Agrarian Reform, the Court said: With particular regard to the requirement of proper party as applied in the case before us, we hold that the same is satisfied by the petitioners and intervenors because each of them has sustained or is in danger of sustaining an immediate injury as a result of the acts or measures complained of. [Ex Parte Levitt, 303 US 633]. And even if, strictly speaking, they are not covered by the definition, it is still within the wide discretion of the Court to waive the requirement and so remove the impediment to its addressing and resolving the serious constitutional questions raised.88 Again, in Kilosbayan, the Court pointed out that ordinary citizens and taxpayers have already been allowed to question the constitutionality of several executive orders issued by the President, "although they were invoking only an indirect and general interest shared in common with the public."89 It added: In line with this liberal policy, ordinary taxpayers, members of Congress, and even associations of planters, and non-profit civic organizations were allowed to initiate and prosecute actions before this Court to question the constitutionality or validity of laws, acts, decisions, rulings, or orders of various government agencies or instrumentalities.90 In essence, under Philippine law the Supreme Court does not dismiss a case simply because the parties do not have standing to sue. It may completely disregard the rule on standing, "even when there is no direct injury to the party claiming the right to judicial review,"91 and it may entertain a suit "which does not satisfy the requirement of legal standing when paramount interest is involved."92 Thus, even if standing had been the central issue in Oposa, the Supreme Court could have similarly waived the technicality. In the Court's own words, the right to a balanced and healthful ecology "concerns nothing less than self-preservation and self-perpetuation."93 The Supreme Court has ruled that the regulation of rentals for houses and lots for residential buildings,94 gambling,95 and rate-fixing in violation of the Public Service Act96 are all of transcendental importance sufficient to disregard the procedural requirement of standing. It is difficult to imagine how anything could be more transcendental than the preservation of the human species. Given the magnitude of the issues raised in Oposa, the Court could have waived the "standing" requirement. D. INTERGENERATIONAL EQUITY HAS NO PRACTICAL EFFECT Others might claim that even if the weight of the case law suggests that the Court would have waived the standing requirement, the fact is that all these decisions refer to present but not future generations. But would this have mattered? A judicial declaration on "intergenerational equity" does not serve any practical purpose. At most, "standing to sue for future generations" is quaint or intellectually stimulating. However, there was no need to invoke the rights of future generations because the present generation can always file a case to enjoin any action that impairs its right to a balanced and healthful ecolo gy.
If Oposa was designed to stop the practice of issuing TLAs, then any person could have simply filed the case on her own behalf and the result would have been the same: the petitioner would still have had a cause of action and standing to sue. The issues raised would still have been recognizable by the Supreme Court. TLAs would still be beyond the protection of the nonimpairment clause of the Constitution. The Supreme Court would have granted the petition and remanded the case for trial on the merits all the same. In short, petitioners still would have won their Supreme Court case and would have landed right back in the regional trial court where the case started, even without invoking the rights of future generations. Does the Supreme Court's pronouncement on standing to sue for future generations really make any difference? E. INTERGENERATIONAL EQUITY IS ALREADY LAW IN THE PHILIPPINES It cannot even be said that, at the very least, intergenerational equity is now part of Philippine law because of Oposa. The Court's "recognition" of the rights of future generations is not novel. It was already law even before this case was decided. Many Philippine laws already mandate the conservation of the country's resources for the benefit of future generations. The Constitution, statutes, and case law together mandate the use of natural resources without impairing the needs of future generations. This was the law even before Oposa. Would a judicial declaration on intergenerational equity carry more weight than those repeatedly made by the legislature? 1. The Constitution Was Intended to Protect the Rights of Future Generations The constitutional provision on the right to a balanced and healthful ecology is new; it has no parallel in the previous constitutions of the Philippines. The original proposal for the constitutional provision was worded thus: Section 18. The State recognizes the human right to a healthy environment and the singular demand of nature to follow its own rhythm and harmony. The State shall therefore maintain ecological balance even as it harnesses our natural resources for the common good and the sustenance of future generations.97 Significantly, the framers intended to incorporate the concept of intergenerational equity into the fundamental law of the land. The deletion of the reference to "future generations" is not significant because the Commission agreed that the provision comprehends future generations, as the following exchange shows: THE PRESIDENT. Are we ready now for the final formulation? MR. AZCUNA. May I read it once more, Madam President: "THE STATE SHALL PROTECT AND ADVANCE THE RIGHT OF THE PEOPLE AND THEIR POSTERITY TO A BALANCED AND HEALTHFUL ECOLOGY IN ACCORD WITH THE RHYTHM AND HARMONY OF NATURE." MR. ROMULO. Madam President, may I suggest the deletion of "POSTERITY" for the sake of economy of words, because I think Commissioner Padilla is right. What we pass here is for now and the future. MR. AZCUNA. "THE PEOPLE" means the present and future generations; we agree.
MR. ROMULO. Yes.98 From this exchange alone, it is clear that the provision already mandates the protection of the rights of future generations. The Records of the Constitutional Commission reveal, however, that the introduction of the right to a balanced and healthful ecology into the Constitution was met with some skepticism. There was an attempt to simply combine this provision with another on the right to health. Commissioner Bias Ople crushed the attempt to fuse the two provisions. He said: To be sure, we ought to have a strong and powerful statement in the Declaration of Principles concerning the ecology in terms of its impact on health, but also for other equally humane and noble purposes and having in mind the danger of the exhaustion of resources. In the case of forests, this can mean eternal flooding . . . .99 There were also observations made to the effect that the entire provision is in fact "within the inherent power of the State under its police power,"100 or that the new formulation contains "beautiful words, but they have no substantial meaning."101 It was proposed that the poetry be eliminated in favor of simpler prose. Again, Ople objected and emphasized that the provision was meant to be more than rhetoric: I believe this is far from being meaningless or a hollow statement. It conveys a powerful sense of the very real problems that we face. Having violated the rhythm and harmony of nature with the rape of our forests and lakes, we have to take seriously the admonition of many experts that if nothing drastic is done by the government and the people in 50 years, we can be a desert [sic], Madam President . . . .102 The discussion that followed, however, suggests that the Commission intended to promote more government action against persons engaged in environmentally destructive acts, rather than action against the government. To quote further: MR. VILLACORTA. Does this section mandate the State to provide sanctions against all forms of pollution? Air, water, and noise pollution? MR. AZCUNA. Yes, Madam President. The right to a healthful environment necessarily carries with it the correlative duty of not impairing the same and therefore, sanctions may be provided for impairment of environmental balance. MR. VILLACORTA. Correspondingly, does this mean that under this section there will be protection provided to human communities surrounding airports, military bases, and factories? MR. AZCUNA. There may be insofar as such mentioned matters contribute to harming the environment or the quality of the human environment. MR. VILLACORTA. In other words, it is protection not only to the life and limb of these human communities but to their psychological welfare as well.
MR. ASCUNA. Insofar as it related to causes from the environment such as noise, for example, which is considered as a form of pollution. This may be controlled or regulated under this provision, Madam President.103 Interestingly, it would seem that the framers intended that by enshrining the right to a balanced and healthful ecology, the government would be saddled with the responsibility of protecting the right by regulating the use of resources and sanctioning violations. Fortunately, the Court did not construe the provision to also preclude actions against government agents. It would indeed be foolish to believe that damage to the environment cannot be initiated by the government, or that the fundamental law of the land was designed to protect government agents from legal reprisals for destroying the environment. If the right can be enforced against any private person, there is no reason why such a right is not also enforceable against the government. 2. Statutes and Case Law Concern for the environmental rights of "future generations" is not new under Philippine law many laws, some of which were passed prior to the ratification of the 1987 Constitution, recognize this right.104 The laws need not be discussed separately here, but they do illustrate one thing: it is not a pronouncement of intergenerational equity - whether by the executive, legislative, or judicial branch - that compels people to preserve the environment for future generations. Both the constitutional and statutory mandates to protect the rights of future generations need to be enforced. Oposa, therefore, merely adds judicial imprimatur to what is already increasingly commonplace in Philippine legislation. Nor is Oposa the first time that the Supreme Court stressed the importance of Article II, Section 16 of the Constitution. The Supreme Court linked the provision with the interests of future generations in Ysmael, Jr. & Co., Inc. v. Deputy Executive Secretary: While there is a desire to harness natural resources to amass profit and to meet the country's immediate financial requirements, the more essential need to ensure future generations of Filipinos of their survival in a viable environment demands effective and circumspect action from the government to check further denudation of whatever remains of the forest lands. Nothing less is expected of the government in view of the clear constitutional command to maintain a balanced and healthful ecology.105 Thus, three years before Oposa was decided, the Supreme Court already had interpreted the constitutional provision on the right to a balanced and healthful ecology to be a constitutional command for government to check the denudation of forestlands. In the meantime, Oposa remains largely ignored. In the last decade, Oposa was cited with significance only once. In Tano v. Socrates, the Supreme Court upheld the power of the local government units to enact laws to protect the environment pursuant to the general welfare clause of the Local Government Code of 1991 (LGC).106 The Court pointed out that the LGC seeks "to give flesh and blood to the right of the people to a balanced and healthful ecology."107 Moreover, the general welfare provisions of the LGC "shall be liberally interpreted to give more powers to the local government units in accelerating economic development and upgrading the
quality of life for the people of the community."108 Oposa was not even necessary in that case, because there were sufficient legal bases for the challenged ordinances under the LGC. The Court mentioned Oposa only to point out that there is a state policy on the protection of the environment. Tano is even more significant than Oposa because it gives local governments a concrete avenue for the protection of the environment. Furthermore, advocates of environmental protection may lobby their local governments for such ordinances. In either case, the outcome is clear. The same cannot be said of Oposa. F. THE POTENTIAL USES OF OPOSA I am not, of course, in any way suggesting that we disregard the environmental rights of future generations. The present generation could deplete resources, often with irreversible consequences - by depleting higher quality resources, leading to higher real prices of resources for future generations; by consuming potentially valuable resources; and by exhausting resources, resulting in the narrowing of the range of available natural resources.109 Philippine law already protects against these outcomes by mandating protection of the rights of future generations, and Oposa adds nothing to the constitutional and legislative mandates. What then does Oposa contribute to environmental protection? There is reason enough to celebrate Oposa. Unfortunately, environmental rights advocates have focused their attention on the decision's colorful dictum and have altogether ignored the pronouncements that make it a genuine landmark decision. The decision is important because Article II, Section 16 of the Constitution is no longer merely a policy declaration, but an actionable right; it no longer requires enabling legislation to be invoked by an aggrieved party. Of course, Oposa fails to clarify if this right may be invok ed immediately, or whether a petitioner must first exhaust all administrative remedies available. Nevertheless, environmental rights advocates should be exploring this opening, rather than dwelling on a non-binding judicial declaration on standing to sue for future generations. Oposa breaks new ground insofar as it holds that the constitutional provision on the right to a balanced environment is an actionable right, even absent any further legislation. The importance of Oposa, thus, is not so much its pronouncement on standing. Rather, as one author pointed out, Oposa is a statement to the effect that: the right to a sound environment is a self-executory constitutional policy. By itself, independent of specific statutory rights, this right is actionable. And it is actionable against the DENR Secretary who is tasked with carrying out the State's constitutional mandate to control and supervise the exploration, development, utilization, and conservation of the country's natural resources.110 This statement is groundbreaking in that constitutional authorities in the Philippines have always believed otherwise. The Principles and State Policies of the Con stitution are the political creed of the nation, which sets out the fundamental obligations of the government. "It is incumbent upon the people to demand fulfillment of these governmental duties through the exercise of the right
of suffrage."111 These principles may aid the courts in their determination of the validity of statutes or executive acts in justiciable cases,112 b ut Joaquin Bernas maintains that they were not intended to be self-executing principles ready for enforcement through the courts. They are, rather, directives addressed to the executive and to the legislative branches of the government. If there was a failure on their part to heed the directives, the people's remedy would be political and not judicial.113 State Policies and Principles under Article II of the Constitution and the separate Social Justice and Human Rights provisions under Article XIII of the Constitution are mere policy declarations and generally require enabling legislation before they can be invoked in courts.114 The task at hand now seems to be to test the potential of this decision. Oposa need not be confined to forest protection. It may be invoked to prevent other forms of environmental degradation. Mining activities,115 the change of land use to industrial or commercial purposes,116 quarrying operations,117 and the emission of toxic medical wastes118 are only some of the environmental problems facing the country today. Oposa also might be used to address the forced displacement of communities caused by infrastructure and development projects. Small landowners have been literally bulldozed out of their lands to make way for export processing zones.119 Thousands of families are under the threat of displacement because of the construction of government projects such as commercial120 and sports complexes,121 cement plants,122 dams,123 geothermal plants,124 mining operations,125 and the commercial development of land.126 All these activities necessarily threaten the environment. May Oposa be used to stop any of these activities? May a citizen, invoking the constitutional right to a balanced and healthful ecology, ask the courts to stop the issuance of all Financial and Technical Assistance Agreements (FTAAs) under the Mining Act of 1995? May a citizen challenge all land use conversions as a violation of this right? Again, such relief might run against the constitutional provisions on the exploitation of natural resources. It is highly unlikely that the courts will sanction suits that seek blanket prohibitions against the issuance of natural resources access instruments such as TLAs or FTAAs. The courts may, instead, find it necessary to fashion a standard under which the challenged action may be declared unconstitutional. Oposa might be potent for another reason. In 2000, Congress enacted Republic Act No. 8975 to "ensure the expeditious and efficient implementation and completion of government infrastructure projects to avoid unnecessary increase in construction, maintenance and/or repair costs and to immediately enjoy the social and economic benefits therefrom."127 While seemingly noble in its objectives, the law may become an agent of environmental degradation because it bars courts from temporarily stopping these projects pending litigation. The law provides: SECTION 3. Prohibition on the Issuance of Temporary Restraining Orders, Preliminary Injunctions and Preliminary Mandatory Injunctions. - No court, except the Supreme Court, shall issue any temporary restraining order, preliminary injunction or preliminary mandatory injunction against the government, or any of its subdivisions, officials or any person or entity,
whether public or private, acting under the government's direction, to restrain, prohibit or compel the following acts: (a) Acquisition, clearance and development of the right-of-way and/or site or location of any national government project; (b) Bidding or awarding of contract/project of the national government as defined under Section 2 hereof; (c) Commencement, prosecution, execution, implementation, operation of any such contract or project; (d) Termination or rescission of any such contract/project; and (e) The undertaking or authorization of any other lawful activity necessary for such contract/project. This prohibition shall apply in all cases, disputes or controversies instituted by a private party, including but not limited to cases filed by bidders or those claiming to have rights through such bidders involving such contract/project. This prohibition shall not apply when the matter is of extreme urgency involving a constitutional issue, such that unless a temporary restraining order is issued, grave injustice and irreparable injury will arise. The applicant shall file a bond, in an amount to be fixed by the court, which bond shall accrue in favor of the government if the court should finally decide that the applicant was not entitled to the relief sought. If after due hearing the court finds that the award of the contract is null and void, the court may, if appropriate under the circumstances, award the contract to the qualified and winning bidder or order a rebidding of the same, without prejudice to any liability that the guilty party may incur under existing laws.128 This law could pose a problem for environmental protection advocates because courts are enjoined from temporarily halting government projects that could be impairing the environment. Because Oposa established the right to environment as a constitutional right that may be immediately invoked, it could be argued that environmental protection falls under the exemption of the law - "extreme urgency involving a constitutional issue, such that unless a temporary restraining order is issued, grave injustice and irreparable injury will arise."129 Proponents of environmental protection may invoke Oposa as falling within the exemption of Republic Act No. 8975. IV. CONCLUSION In this Article, I have hoped to explain why Oposa excites environmental advocates everywhere except in the Philippines. The answer is simple: we have misunderstood what the Philippine Supreme Court actually said in the case. Even in the Philippines, Oposa did not inspire litigation to protect the environment and the Supreme Court's environmental docket remains sparse.130 No one in the Philippines would say that the environment has improved in the last ten years, despite the enactment of a spate of new environment-related laws.131
To summarize, no TLA has ever been cancelled pursuant to the Court's ruling in Oposa and the DENR may issue TLAs so long as there are forests to fell. At the last count, 1.3 million hectares of Philippine forestland are still covered by these instruments. The Court's spectacular pronouncement that the children had standing to sue even on behalf of those generations not yet born is merely dictum. In fact, the Court could have assumed the existence of standing, because the petitioners were seeking the enforcement of a public right and the performance of a public duty. The Court could also have waived the issue of standing entirely because of the magnitude of the issues that were raised. Worse, the pronouncement on standing to sue for future generations is useless, because the same results could have been achieved had the petitioners filed the case to protect only their own right to a balanced and healthful ecology. Moreover, the protection of the rights of future generations is already mandated by the Constitution and several Philippine laws. The Philippine Supreme Court did not craft anything new but merely reiterated the directives of the Constitution and Congress. Yet Oposa should be celebrated for another reason: the Court's ruling that the constitutional right to a balanced and healthful environment is a specific, self-executory, and actionable right, superior to the Bill of Rights. This part of the case has been overlooked and should be exploited by environmental protection advocates to further their cause. Indeed, without any concrete results from Oposa, the case has been reduced to what the counsel for petitioners was hoping to avoid: another "rhetorical call for responsibility to future generations for the world's natural resources."132 1. Oposa v. Factoran, 224 SCRA 792 (1993); reprinted in 33 I.L.M. 173 (1994). 2. Id. at 802. 3. Ben Boer, The Rise of Environmental Law in the Asian Region, 32 U. RICH. L. REV. 1503, 1534-37 (1999). 4. Neil A.F. Popovic, In Pursuit of Environmental Human Rights: Commentary on the Draft Declarati on of Principles on Human Rights and the Environment, 27 COLUM. HUM. RTS. L. REV. 487, 513 (1996). Oposa was also referred to as a seminal decision that implements the Rio Declaration on Environment and Development's components on a right to a healthy a nd decent environment, and intergenerational equity and responsibility. See Alfred Rest, Preliminary Efforts i n Implementing the Rio Targets, 55 ATENEO L.J. 1, 10-11 (1996). 5. See, e.g., Sumudu Atapattu, Sustainable Development, Myth or Reality?: A Survey of Sustainable Development Under International Law and Sri Lankan Law, 14 GEO. INT'L ENVTL. L. REV. 265, 293 n.98 (2001); Dr. Ibibia Lucky Worika, Deprivation, Despoliation and Des titution: Whither Environment and Human Rights in Nigeria's Niger Delta?, 8 ILSA J. INT'L & COMP. L. 1, 21 (2001); Peggy Rodgers Kalas, International Environmental Dispute Resolution and the Need for Access by Non-State Entiti es, 12 COLO. J. INT'L ENVTL. L. & POL'Y 191, 206 n.55; Janelle P. Eurick, The Constitutional Right to a Healt hy Environment: Enforcing Environmental Protection through State and Federal Constitutions, 11 INT'L LEGAL PERSP. 185, 200 (2001); Carl Bruch, WoIe Coker & Chris VanArsdale, Constitutional Environmental Law: Giving Force to Fundamental Principles In Africa, 26 COLUM. J. ENVTL. L. 131, 148 (2001); Edith Brown Weiss, The Rise or the Fall of International Law?, 69 FORDHAM L. REV. 345, 370 n.94 (2000); John Lee, The Underlying Legal Theory to Support a Well-Defined Human Right to a Healthy Environment as a Principle of Customary International Law, 25 COLUM. J. ENVTL. L. 283, 317-18 (2000); Malgosia Fitzmaurice, The Right of the Child to a Clean Environment, 23 S. ILL. U. L.J. 611, 618 (1999); Jeffrey M. Gaba, Envi ronmental Ethics and our Moral Relationship to Future Generations: Future Ri ghts and Present Virtue, 24 COLUM. J. EVENTL. L. 249, 263 n.37 (1999); Bru ce Ledewitz, Establishing a Federal Constitutional Ri ght to a Healthy Environment in US and in Our Posterity, 68 MISS. L.J. 565, 604-05 (1998); John C.
Dernbach, Sustainable Development as a Framework for National Governance, 49 CASE W. RES. L. REV. 1, 66 n.332 (1998); Nichola s A. Robinson, Comparative Environmental Law Perspectives on Legal Regimes for Sustai nable Development, 3 WIDENER L. SYMP. J. 247, 261 n.56 (1998); J. Martin Wagner & Neil A.F. Popovic, Environmental Injustice on United States Bases in Panama: International Law and the Right to Land Free From Contamination and E xplosives, 38 VA. J. INT'L L. 401, 493 (1998); Prudence E. Taylor, From Environmental to Ecological Human Rights: A New Dynamic in International Law?, 10 GEO. INT'L ENVTL. L. REV. 309, 353 n. 174 (1998); Paul A. Barresi, Beyond Fairness to Future Generations: An lntragenerational Alt ernative To Intergenerational Equity in the International Environmental Arena, 11 TUL. EVENTL. L.J. 59, 82 (1997); Hari M. Osofsky, Environmental Human Rights Under the Alien Tort Statute: Redress for Indigenous Victims of Multinational Corporations, 20 SUFFOLK TRANSNAT'L L. REV. 335, 376 (1997); Ellen Hey, The World Bank Inspection Panel: Towards the Recognition of a New Legally Relevant Relationship in International Law, 2 HOFSTRA L. & POL'Y symp. 61, 61 n.2 (1997); Neil A .F. Popovic, Pursuing Environmental Justice with International Human Rights and St ate Constitutions, 15 STAN. ENVTL. L.J. 338, 340 n.4 (1996); Christopher D. Stone, Locale and Legitimac y in International Environmental LAW, 48 STAN. L. REV. 1279, 1281 n.12 (1996); Mark Allan Gray, The International Crime of Ecocide, 26 CAL. W. INT'L L.J. 215, 240 (1996); and James C. Wood, Intergenerational Equity and Climate Change, 8 GEO. INT'L ENVTL. L. REV. 293, 324 (1996). 6. For a rare c ritical look at the case, see Vaughan Lowe, Sustainable Development and Unsustainable Arguments, in INTERNATIONAL LAW AND SUSTAINABLE DEVELOPMENT 19, 27-28 (Alan Boyle & David Freestone eds., 1999). 7. Antonio A. Oposa, Jr., The Power to Protect the Environment, a thttp://www.oposa.com/oposa_family/environment2.htm (Aug. 30, 1997) (excerpts of a paper presented before the LAWASIA Conference in Manila). 8. See Ted Allen, Note, The Philippine Children's Case: Recognizing Legal Sta nding for Future Generations, 6 GEO. INT'L ENVTL. L. REV. 713 (1994); see also Matthew Tuchband, The Systemic Environmental Externalities of Free Trade: A Call for Wiser Trade Decisionmaking, 83 GEO. L.J. 2099, 2106 n.34 (1995); J. William Futrell, Efforts t o Improve Environmental Programs: NGOs, C990 A.L.I.-A.B.A. 299, 331-32 (1995); Jeffrey L. Dunoff, From Green to Global: Toward the Transformation of International Environmental Law, 19 HARV. ENVTL. L. REV. 241, 291 n.196 (1995). 9. See Richard Desgangne, Integrating Environmental Values i nto the European Convention on Human Rights, 89 AM. J. INT'L L. 263, 263, n.7 (1995); David A. Wirth, The Rio Declaration on Environment and Development: Two Steps Forward and One Back, or Vice Versa?, 29 GA. L. REV. 599, 652, n.51 (1995). 10. Oposa v. Factoran, 224 SCRA 792, 796 (1993). 11. Pres. Decree No. 705 (1975), [sec] 3(ee) defines a timber license agreement thus: License agreement is a privilege granted by the State t o a person to utilize forest resources within any forest land with the right of possession and occupation thereof to the exclusion of others, except the government, but with the corresponding obligation to develop, protect and rehabilitate the same in accordance with the terms and conditions set forth in said agreement. 12. Oposa, 224 SCRA at 797. 13. Id. at 803-04. 14. PHIL. CONST. art. III, [sec] 10 (1987). 15. Oposa, 224 SCRA at 800-01. 16. Id. at 802. 17. Id.
18. Phil. R. Civ. P. 3, [sec] 12 (1997). The Court said that: The subject matter of the complaint is of common and general interest not just to several, but to all citizens of the Philippines. Consequently, since the parties are so numerous, it becomes impracticable, if not totally i mpossible, to bring all of them before the court. We likewise declare that the plaintiffs therein are numerous and representative enough to ensure the full protection of all concerned interests. Oposa, 224 SCRA at 802. 19. Oposa, 224 SCRA at 802. 20. Id. at 802-03. 21. Id. at 803. 22. PHIL. CONST. art. II, [sec] 16 (1987). 23. Oposa, 224 SCRA at 804-05. 24. Id. at 805. 25. Section 3 of the Executive Order in part provides: Sec. 3. Declaration of Policy.-It is hereby declared the policy of the State to ensure the sustainable use, development, management, renewal and conservation of the country's forest, mineral, land, off-shore areas and other natural resources, including the protection and enhancement of the quality of the environment, and equitable access of the different segments of the population to the development and use of the country's natural resources, not only for the present generation but for future generations as well . . . . Exec. Order No. 192, s. 1987, [sec] 3. 26. See Exec. Order No. 292, s. 1987, [sec] 3. 27. Oposa, 224 SCRA at 807. 28. Pres. Decree No. 1151 (1977). 29. Pres. Decree No. 1152 (1977). 30. Oposa, 224 SCRA at 807. 31. Citing jurisprudence, the Supreme Court defined a cause of action as "an act or omission of one party in violation of the legal right or rights of the other; and its essential elements are legal right of the plaintiff, correlative obligation of the defendant, and act or omission of the defendant in violation of said legal right." Oposa, 224 SCRA at 808. 32. Id. at 809. 33. Id. (quoting PHIL. CONST. art. VIII, [sec] 1 (1987)). 34. Id. at 810. 35. Id. at 812; PHIL. CONST. art. III, [sec] 10 (1987) (providing that "[n]o law impairing the obligation of contracts shall be passed"). 36. Oposa, 224 SCRA at 812. 37. Id. at 812-13.
38. Oposa, 224 SCRA at 814. 39. The majority consisted of Associate Justices Cruz, Padilla, Bidin, Grino-Aquino, Regalado, Romero, Nocon, Bellosillo, Melo, and Quiason. 40. Those justices taking no part in this case were Chief Justice Narvasa and Associate Justices Puno and Vitug. 41. Oposa, 224 SCRA at 814 (Feliciano J., concurring). 42. Id. 43. Id. at 815. 44. Id. 45. Id. 46. Id. (emphasis in original). 47. Id. at 817. 48. Id. at 818. 49. Id. 50. Id. at 814. 51. Id. at 815. 52. Id. at 818. 53. Id. at 814. 54. Status Report of Timber License Agreements (TLAs) as of December 31, 2001, Forest Management Bureau, Phil. Dept. of Environment and Natural Resources 33-34 (2001). 55. The state of the Philippine environment cannot be adequately discussed here, but for an overview of the problems, see Danilo C. Israel, The Quest for a Better Environment: Past Experiences and Future Challenges, at 2 (Phil. Inst. for Dev. Stud., Discussion Paper Se ries No. 2002-14 (Nov. 2002)). 56. There were 75 TLAs still in force in 1990. See Therese Desiree Perez, Philippine Forests: A Case of Disappearance, 3 PHIL. NAT. RES. L.J. 18, 23 (1990). One can only imagine the amount of evidence that must be adduced against each TLA holder. As of June 1996, 34 TLAs covering 1,515,033 hectares remain in effect. See ENVTL. MGMT.M BUREAU, PHIL. ENVTL. QUALITY REP., 1990-1995 at 321 (1996). 57. Marites Danguilan Vitug, Forest Policy and National Policy, in FOREST POLICY AND POLITICS IN THE PHILIPPINES: THE DYNAMICS OF PARTICIPATORY CONSERVATION 11, 16 (Peter Utting ed., 2000). 58. Steel Co. v. Citi zens for a Better Env't, 523 U.S. 83 (1998); see also Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992). 59. Phil. Ass'n. of Service Exps., Inc. v. Torres, G.R. No. 98472, Aug. 19, 1993 (citing Ass'n. of Small Landowners in the Phil., Inc. v. Sec'y of Agrarian Reforms, G.R. No. 78742 and companion cases, July 14, 1989; 175 SCRA 343, 364). 60. Kilusang Mayo Uno Labor Ctr. v. Garcia, Jr., G.R. No. 115381, Dec. 2, 1994. 61. Phil. R. Civ. P. 3, [sec] 2 (1997).
62. Id. at 2, [sec] 2 (1997). 63. Rava Dev. Corp. v. Ct. App., G.R. No. 96825, 211 SCRA 144, 153 (1992); Heirs of Ildefonso Cosolluela, Sr., Inc. v. Rico Gen. Ins. Corp, G.R. No. 84628, 179 SCRA 511, 517 (1989). 64. See Oposa v. Factoran, 224 SCRA 792, 796 (1993) (emphasis added). 65. Id. at 802. 66. Id. at 803. 67. Id. at 808. 68. Id. 69. Gan Hock v. Ct. App., G.R. No. L-60848, May 20, 1991, 197 SCRA 223, 230 (1991). See also Susti guer v. Tamayo, G.R. No. 29341, 176 SCRA 579, 587 (1989). 70. G.R. No. L-59068, 120 SCRA 337, 340 (1983). 71. Id. at 341-42. 72. See Rep. Act No. 386 (1949), art. 40. 73. Delta Motors Corp. v. Ct. App., G.R. No. 121075, July 24, 1997. 74. City of Manila v. Entote, G.R. No. L-24776, June 28, 1974. 75. Equatorial Realty Dev., Inc. v. Mayfair Theater, Inc., G.R. No. 16063, Nov. 21, 1996, citing Black's Law Dictionary, 6th edition, 1990; see also Morales v. Paredes, 55 Phil. 565 (1930); Reagan v. Comm'r of Internal Revenue, G.R. No. L-26379, Dec. 27, 1969; Am. Home Assurance Co. v. Nat'l Labor Relations Comm'n, G.R. No. 120043, July 24, 1996. 76. Lee v. Ct. App. and De Simeon, G.R. No. L-28126, Nov. 28, 1975. 77. Curiously, even members of the Supreme Court suggest that Oposa did in fact rule on the children's standing to sue. See Flerida Ruth P. Romero, The Role of the Judiciary in Promoting the Rule of Law in the Area of Environmental Protection, in THE COURT SYSTEMS J. 94, 96 (Special Edition, Apr. 1999) (Justice Romero said, "we recognized the concept of intergenerational responsibili ty by ruling that petiti oner children can file a class suit for themselves, for others of their generation, and for succeeding generations, to preserve the country's rainforests."). Chief Justice Hilario Davide himself recently said: In fact, in a frequently cited case, Oposa et al. vs. Secretary Factoran, (G.R. No. 101083, 30 July 1993) I even sustained the standing of minors to bring suit, not only in their behalf, but also in behalf of generations yet unborn, to shield the country's dwindling natural resources from farther degradation. I believe it is far more preferable to allow an issue of urgency of transcendental importance to be argued before and passed upon by the courts than to leave aggrieved parties with the feeling of helplessness born out of a strict and unrelenting application of traditional, if not outmoded, concepts of standing and personality. Hilario G. Davide, Jr., The Judicial Response To Terrorism: National Venues, Speech delivered at the 10th International Judicial Conference in Strasbourg, May 23-24, 2002, at http://www.coe.int/t/e/communication_ and_research/press/events/5.-ministerial_conferences/2002/200205_international_judicial_conference__strasbourg/panel 1_hilariogdavidejr.asp. These remarks notwithstanding, the fact remains that "standing" was not an issue in Oposa no matter how many times one reads the case. 78. Oposa v. Factoran, 224 SCRA 792, 808 (1993).
79. Garcia v. Bd. of Inv., G.R. No. 88637, 177 SCRA 374, 383-84 (1989). 80. G.R. No. 63915, 136 SCRA 27 (1985). 81. Id. at 37. 82. Legaspi v. Civil Serv. Comm'n, G.R. No. 72119, May 29, 1987, 150 SCRA 530, 536 (1987). 83. Kilosbayan Inc. v. Guingona, Jr., 232 SCRA 110, 134 (1994). 84. Id. citing Avelino v. Cuenco, G.R. No. L-2821, Mar. 4, 1949. 85. Id. citing Tan v. Macapagal, 43 SCRA 677, 680 (1972). 86. See PHILCONSA v. Gimenez, 15 SCRA 479 (1965); Civil Liberties Union v. Executive Sec'y, 194 SCRA 3I7 (1991); Guingona v. Carague, 196 SCRA 221 (1991); Osmena v. COMELEC, G.R. No. 100308, July 30, 1991, 199 SCRA 750 (1991); Carpio v. Executive Sec'y, 206 SCRA 290 (1992); Iloilo Palay and Corn Planters Ass'n, Inc. v. Feliciano, 13 SCRA 377 (1965); Sanidad v. COMELEC, 73 SCRA 333 (1976); Laurel v. Garcia, G.R. No. 92013, July 25, 1990, 187 SCRA 797 (1990); Garcia v. Bd. of Inv., 177 SCRA 374 (1989) and 191 SCRA 288(1990); Maceda v. Macaraig, 197 SCRA 771 (1991); Garcia v. Executive Sec'y, 211 SCRA 219 (1992); De Guia v. COMELEC, 208 SCRA 420 (1992); Pasay Law and Consciousness Union, Inc. v. Cuneta, 101 SCRA 662 (1980). 87. 163 SCRA 371, 378 (1988); see also Basco v. Phil. Amusements and Gaming Corp., 197 SCRA 52, 60 (1991). 88. G.R. Nos. 78742, 79310, 79744, 79777, 175 SCRA 343 (1989). 89. Citing Araneta v. Dinglasan, G.R. No. L-2044, Aug. 26, 1949; Araneta v. Angeles, G.R. No. L-2756; Rodriguez v. Tesorero de Filipinas, G.R. No. L-3054; Guerrero v. Comm'r of Customs, G.R. No. L-3055; Baredo v. Comm'n on Elections, G.R. No. L-3056, 84 Phil. 968 (1949). 90. Kilosbayan v. Guingona, Jr., 232 SCRA 110, 137(1994). 91. BAYAN v. Executive Sec'y, 342 SCRA 449, 481 (2001). 92. Integrated Bar of the Phil. v. Zamora, 338 SCRA 81, 101 (2001). 93. Oposa v. Factoran, 224 SCRA 792, 805 (1993). 94. Araneta v. Dinglasan, 84 Phil. 368 (1949). 95. Kilosbayan, Inc. v. Teofisto Guingona Jr., G.R. No. 113375, May 5, 1994. 96. Kilusang Mayo Uno Labor Center v. Garcia, Jr., G.R. No. 115381, Dec. 23, 1994. 97. Proposed Res. No. 537, RESOLUTION TO INCORPORATE IN THE NEW CONSTITUTION AN ARTICLE ON THE DECLARATION OF PRINCIPLES, 4 RECORD OF THE CONSTITUTIONAL COMMISSION [hereinafter RECORD] 579 (1986). 98. 4 RECORD 915-16. All emphases in the records of the Constitutional Commission are in th e original. 99. 4 RECORD 907. 100. 4 RECORD 914. 101. 4 record 914. Commissioner Padilla opined that the provision did not serve any purpose:
MR. PADILLA. If we were writing a poem, that phrase "rhythm and harmony" may have some place, but not in a Constitution, and much less in the Declaration of Principles. Madam President, in fact, this section 17 is within the inherent power of the State under its police power. In fact, the Civil Code has provisions on nuisances under Article 6, line 4, which provides that a nuisance is any act, commission, establishment, business, condition or property or anything else which: (1) injures or endangers the health or safety of others; (2) annoys or offends the senses; (3) shocks, defies or disregards decency or morality; ( 4) obstructs or interferes with the free passage of any public highway or street or any body of water; and (5) hinders or impairs the use of property . . . . So if we must be prevailed upon to include a provision in the Declaration of Principles, to which 1 do not exactly c oncur, let us make it simple, similar to what was suggested by Commissioner Suarez. Or if we want to preserve some of the wordings of the Committee report, let us just simply say: "THE STATE RECOGNIZES THE HUMAN RIGHT TO HEALTHFUL ENVIRONMENT AND TO ECOLOGICAL BALANCE OF NATURE" or adopt what Commissioner Suarez suggested because i t is not necessary to say "FOR THIS AND FUTURE GENERATIONS" or "FOR NOW AND POSTERITY." It is understood that whatever we do here is intended for the general welfare of all the peoples now and tomorrow . . . . And so, I am against the new formulation, especially when it mentions "THE SINGULAR DEMAND OF NATURE FOR RHYTHM AND HARMONY." These may be beautiful words, but they have no substantial meaning. 102. 4 RECORD 914. 103. 4 RECORD 913 (emphasis added). 104. See Rep. Act No. 826 (1952); Pres. Decree No. 330 (1972); Pres. Decree No. 389 (1974); Pres. Decree No. 705 (1975); Pres . Decree No. 1151 (1977); Pres. Decree No. 1152 (1977); Pres. Decree No. 1160 (1977); Pres. Decree No. 1305 (1978); Pres. Decree No. 1559 (1978); Exec. Order No. 192 (1987); Exec. Order No. 277 (1987); Exec. Order No. 292 (1987); Rep. Act No. 7394 (1992); Rep. Act No. 7586 (19 92); Rep. Act No. 7611 (1992). 105. Ysmael, Jr. & Co., Inc. v. Deputy Executive Sec'y, G.R. No. 79538, Oct. 18, 1990. 106. See Tano v. Socrates, 278 SCRA 154 (1997). 107. Rep. Act No. 7160, [sec] 16 (1991). 108. Rep. Act No. 7160, [sec] 5(c) (1991). 109. Bradford C. Mank, Protecting the Environment for Future Generations: A Proposal for a "Republican" Superagency, 5 N.Y.U. ENVTL. L.J. 444, 450-51 (1996). 110. Antonio G.M. La Vina, The Right to a Balanced and Healthful Ecology: The Odyssey of a Constitutional Policy, 6 PHIL. NAT. RES. L.J. 3, 10 (1994). 111. VICENTE SINCO, PHILIPPINE POLITICAL LAW: PRINCIPLES AND CONCEPTS, 118-19 (1962). 112. Id. 113. 2 JOAQUIN BERNAS, THE CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES: A COMMENTARY 2 (1988). 114. See Basco v. Philippine Amusements and Gaming Corp., G.R. No. 91649, May 14, 1991, 197 SCRA 52, 68 (art. XIII, [sec] 13, among others, "are merely statement of principles and policies. As such they are basically not self-executing, meaning a law should be passed by Congress to clearly define and effectuate such principles."); Tolentino v. Sec'y of Fin., G.R. No. 115455, Aug. 25, 1994, 235 SCRA 630,685, (art. XIII, [sec] 1, among others, "are put in the Constitution as moral incentives to legislation, not as judicially enforceable rights."). The one
exception seems to be section 3 of Article XITI, which the Court cites to support employees' right to security of tenure. See Lopez v. Javier, G.R. No. 102874, Jan. 22, 1996, 252 SCRA 68, 76. The fact that Article XIII lays down principles and policies does not diminish its importance. As the Supreme Court explained in Aris (Phil.) Inc. v. Nat'l Labor Relations Comm'n, G.R. No. 90501, Aug. 5, 1991, Article XIII establishes the strong foundations of a truly just and humane society. This Article addresses itself to specified areas of concern - labor, agrarian and natural resources reform, urban land reform and housing, health, working women, and people's organizations and reaches out to the und erprivileged sector of society, for which reason the President of the Constitutional Commission of 1986, former Associate Justice of this Court Cecilia MunozPalma, aptly describes this Article as the "heart of the new Charter." 115. See Chay Florentino-Hofilena, Searching for Gold in B'laan Country, in patrimony: 6 CASE STUDIES ON LOCAL POLITICS AND THE ENVIRONMENT IN THE PHILIPPINES 98 (Shiela S. Coronel, ed., 1996). 116. See Carlito Pablo & Ca thy Caflares, Farmers Protest Expulsion from Ejercito Land, PHIL. DAILY INQUIRER, Sept. 15, 1998. 117. See Carlito Pablo, Gov't Asks Quarry Firms t o Shut Down, PHIL. DAILY INQUIRER, Sept. 15, 1998. See also Babes Montana, Turning Mountains into Deserts, PHIL, J., Sept. 25, 1998; Babes Montana, Disaster Looms at Quarry Site, PHIL. J., Sept. 26, 1998. 118. See Joel San Juan, MMDA to Inspect Again 40 Hospitals on Waste Disposal, TODAY, Sept. 23, 1998. 119. See Shiela S. Coronel, The Killing Fields of Commerce, in BOSS: 5 CASE STUDIES OF LOCAL POLITICS IN THE PHILIPPINES 3 (Jose F. Lacaba, ed., 1995). 120. See Atienza Backs Bilibid Project, TODAY, Aug. 11, 1998; Bong Cabagbag, Venders Sue Baguio Officials, TODAY, Dec. 4, 1997. 121. See Erap, Jinggoy Asked to Stop Demolitions, TODAY, Apr. 24, 1998. 122. See J. Vicente, Deny Agno an ECC - Farmers, TODAY, June 25, 1998. 123. See Maurice Malanss, International Act ion Against Dams held, TODAY, Mar. 16, 1998. 124. See Malou Talosig, Leyte t o Host Biggest Geothermal Plants, TODAY, Feb. 7, 1998. 125. See Maurice Malanes, Bontoc Folk t o Govt: Stop Miners, or Else, TODAY, Aug. 18, 1998 at 4; Jaime Espina, Negros Solon Vows to Fight Mining, Urges Strengthening of Antimining Opposition, TODAY, Aug. 18, 1998; Nereo C. Lujan, Coal Mining Exacts Heavy Toll on Island, PHIL. DAILY INQUIRER, Aug. 21, 1998. 126. See Ric Puod, Agrarian Reform Farm Threatened, TODAY, Sept. 3, 1997. 127. Rep. Act No. 8975, [sec] 1 (2000). Section 2 of the law provides the following definitions: (a) "National government projects" shall refer t o all current and future national government infrastructure, engineering works and service contracts, including projects undertaken by government-owned and -controlled corporations, all projects covered by Republic Act No. 6957, as amended by Republic Act No. 7718, otherwise known as the Build-Operate-and-Transfer Law, and other related and necessary acti vities, such as site acquisition, supply and/or installation of equipment and materials, implementation, construction, completion, operation, maintenance, improvement, repair and rehabilitation, regardless of the source of funding. (b) "Service contracts" shall refer to infrastructure contracts entered into by any department, office or agency of the national government with private entities and nongovernment organizations for services related or incidental to the functions and operations of the department, office or agency concerned. 128. Id. [sec] 3 (emphasis added).
129. Id. 130. For a summary of the Supreme Court's decisi ons on the environment, see Romero, supra note 77, at 94-101. 131. See, e.g., Philippine Plant Variety Protection Act of 2002, Rep. Act No. 9168 (2002); Wildlife Resources Conservation and Protection Act, Rep. Act No. 9147 (2001 ); National Caves a nd Cave Resources Management and Protection Act, Rep. Act No. 9072 (2001); Ecological Solid Waste Management Act of 2000, Rep. Act No. 9003 (2000); Philippine Clean Air Act of 1999, Rep. Act No. 8749 (1999); Animal Welfare Act of 1998, Rep. Act No. 8485 (1998). 132. Oposa, Jr., supra note 7. DANTE B. GATMAYTAN* * Assistant Professor, University of the Phi lippines, College of Law. LL.B., University of t he Philippines, 1991; M.S.E.L., Vermont Law School, 1995; LL.M., University of California, Los Angeles, 1996. I wish to thank Ms. Claudette de la Cerna (LL.B., University of the Phi lippines, 2005, expected) for her research assistance.
