Friday, August 15, 2008

Cleaning Up the Manila Bay Case (Part 2)

by Alan S. Cajes

The picture blow is taken from 
The Complaint

On January 29, 1999, the concerned citizens of Manila Bay filed before the Regional Trial Court in Imus, Cavite Civil Case No. B1851-99 demanding that the Philippine Government cleans up, rehabilitates and protects Manila Bay. There are several reasons offered by the plaintiffs in filing the complaint. These are described below.

Reasons for Filing the Complaint

Reason No. 1. A body of water near a major city is a blessing. It is a source of food to the city and nearby residents. It also serves as a major artery for transporting people and commodities. For nature lovers, such body of water is a city’s “center of attraction”. According to the plaintiffs, it can be “an eternal object of wonder, mystery, beauty and serenity.” (Unless otherwise stated, the quotes are taken from the Complaint filed by the Plaintiffs).

Reason No. 2. The Philippines is gifted with 18,000 kilometers of shoreline and a territorial sea of 220 million hectares. The country is a mega biodiversity paradise. According to the plaintiffs, the Philippines has 488 of the “500 known kinds of corals in the world.”

Reason No. 3. Metropolitan Manila is a mega city and Manila Bay and its tributaries are its key natural resources. Manila Bay is “world famous for its magnificent sunset” and its waters were “once gifted with a stupendous abundance of marine resources.” 

This natural resource, however, is not “protected and preserved for its resource and aesthetic values.” Manila Bay “has been turned into a cesspit of sewage and the dumpsite of solid and toxic wastes by the Filipino people and their government.”

Reason No. 4. The deterioration of Manila Bay is due to the insufficiency of the actions done to protect and preserve it as a resource inspite of the country’s “complete” and “sophisticated set of Environmental Laws in Asia.” The laws are not implemented by those who are mandated to implement them. The plaintiffs demand the enforcement of a “simple legal provision” that “has long been existing in the statute books but has atrophied in the sickbed of non-compliance.” They are referring to Section 20 of Presidential Decree (PD) No. 1152 or the Philippine Environment Code. This provision states that:
“It shall be the responsibility of the polluter to contain, remove and clean up water pollution incidents at his own expense. In case of his failure to do so, the government agencies concerned shall undertake containment, removal and clean up operations and expenses incurred in said operations shall be charged against the persons and/or entities responsible for such pollution.”
Reason No. 5. With the deterioration of Manila Bay, there is a need to “fashion the relief and remedy appropriate to the monumental problem”. Given the failure of the executive branch to implement the law satisfactorily, the Court can issue a judgment “that will have the credibility and the force of law to ensure its proper compliance and full enforcement.” Besides, where there is a right, there is a remedy.

The Plaintiffs

The Concerned Citizens of Manila Bay were represented by Divina Ilas et. al. They represent the marine life under the “Trust Doctrine, the general principles of guardianship, and the inter-species responsibility in the Kingdom of Life.” This means that the plaintiffs filed the complaint because the Manila Bay was entrusted to them by the past generations, because it is their responsibility to protect Manila Bay from degradation, and because they are acting in behalf of the Manila Bay species that cannot represent themselves in the tribunal of human beings. They sue as a class under Rule 3, Section 12 of the 1997 Rules of Civil Procedure.

The Defendants

The principal defendant is the Government of the Republic of the Philippines through its various agencies.

Manila Bay According to the Plaintiffs

Manila Bay is an enclosed body of water with an area of 1,8000 square kilometers. It is ringed by a coastline of about 190 kilometers. It stretches 48 kilometers from north to south. Its width is 35.2 kilometers at the middle at lean low tidewater. Its entrance on its southwest side is 19 kilometers across. This is dotted by the Islands of Corregidor, Caraballo and Fraile. Manila BayCorregidor are historical sites of the country, notably during the first and second world wars. AndManila Bay was “once endowed with incredible abundance of fish and other aquatic life. As a consequence, however, of the defendants’ “accumulated acts of omission and commission,” it has “become so polluted” that “its aquatic life” is “so seriously depleted to the brink of decimation.” It has “become a genuine public nuisance” and “poses serious public health hazards.” About five million gallons of raw sewage and 1,000 to 2,000 tons of garbage are dumped by Metro Manila into Manila Bay and its waterways every day. On an annual basis, about 6.5 million tons of toxic and hazardous wastes is “discharged to the environment, much of this in the waterways of Manila Bay.” As a result, fish catch in certain areas “has been reduced by as much as 90-95 percent while “shellfish caught in Manila Bay’s waters are beginning to exhibit indicative signs of toxicity harmful to human health.”

Manila Bay is a sensitive and fragile ecosystem. Given its narrow mouth, the “free ingress and egress of seawater to and from Manila Bay is severely restricted.” Its topographic watershed area covers its surrounding land mass, which is approximately 17,000 square kilometers. This practically includes Laguna de Bay, which is the second largest freshwater body in Southeast Asia. A total of 26 principal rivers, including Pasig and Imus Rivers, drain into Manila Bay.

According to the plaintiffs, the “accumulated neglect and outright abuse against Manila Bay” is an “evidence res ipsa loquitor of Man’s reckless imprudence against, if not outright rape, of Mother Nature.” The “Filipino people and their Government have used Manila Bay and its waterways as a toilet bowl, septic tank and the dumpsite of toxic wastes, all rolled into one.”

In terms of water quality, Manila Bay “is no longer fit for swimming, skin-diving and other forms of contact recreation.” Its waters have “been found to contain 1.3 MILLION MPM/ml of fecal coliform.” This is way above the standard for such forms of contact recreation which is only 200 MPM per 100 milliliters.

Causes for Action

The degradation of Manila Bay is accordingly “incapable of pecuniary estimation”. Thus, the “law decrees that when a body of water is polluted, the polluter should not only pay a fine and suffer imprisonment of from 2-4 years, the water pollution itself must be cleaned up” and the resource be “restored, rehabilitated and ‘made whole’ once again.”
It was argued that the “continued and ongoing pollution of Manila Bay constitutes a violation of the following:

  • The plaintiffs’ constitutional right to life, to health, and to a balanced and healthful ecology as enshrined in the 1987 Constitution of the Philippines;
  • The Philippine Environmental Policy (PD No. 1151);
  • The Philippine Environmental Code (PD No. 1152);
  • The Pollution Control Law (PD No. 984);
  • The Water Code (PD No. 1067);
  • The Illegal Disposal of Wastes (PD No. 825);
  • The Marine Pollution Law (PD No. 979);
  • The DENR’s Mandated and Enabling Law (EO 192);
  • The Toxic and Hazardous Wastes Law (RA No. 6969);
  • Civil Code provisions on nuisance, torts and damages and human relations;
  • The Trust Doctrine and the Principles of Guardianship;
  • The plaintiffs’ natural right and instinct of self-preservation and self-perpetuation;
  • The theory of inter-species responsibility, and
  • International law.
The plaintiffs therefore demand that all defendants, in view of their “reckless, wholesale, accumulated and ongoing acts of omission or commission resulting in the clear and present danger to public health and in the depletion and contamination of the marine life of Manila Bay,” must be “held jointly and/or solidarily liable and be collectively ordered to clean up Manila Bay and to restore its water quality to class B waters.” In addition, the defendants “must also be ordered to revitalize marine life.”
The plaintiffs identified specific government agencies as representatives of the Philippine government. In their action, they also identified as unknown defendants the commercial and industrial establishments that improperly discharge wastes, and the local government units that fail to implement the provisions of the laws cited, including the mandated functions as defined by the Local Government Code. In addition, the plaintiffs included as unknown defendants the residents of the towns and cities of Manila Bay’s 1.7 million hectares of watershed for indiscriminately disposing of “their solid and liquid wastes into the waterways and waterbodies” and for “using destructive fishing methods...”

All of the defendants are asked to be “ordered principally and solidarily liable for the clean-up” and to “be made to pay, directly or indirectly, the costs of the clean up operations.” And in view of the destruction of Manila Bay, the plaintiffs asked that the “principal defendants be ordered to pay damages in the symbolic amount of One Peso (P1.00).”

Decision of the Regional Trial Court

The Court found merit in the complaint. It ordered the “defendant-government agencies, jointly and solidarily, to clean up and rehabilitate Manila Bay and restore its waters to SB classification to make it fit for swimming, skin diving and other forms of contact recreation (Regional Trial Court).” The Court also gave the defendants six months “to act and perform their respective duties by devising a consolidated, coordinated and concerted scheme of action for the rehabilitation and restoration of the Bay (Regional Trial Court).”

The Court likewise gave specific orders to the government agencies. The orders basically required them to perform their mandates. For example, the MWSS was directed to “install, operate and maintain adequate sewerage treatment facilities in strategic places under its jurisdiction and increase their capacities (Regional Trial Court).”

Bases of the Decision

The Court recognized the programs, projects and activities done by the government agencies to perform their respective mandates. The Court, however, found the efforts to clean up Manila Bay as “either on the design or planning stage (Regional Trial Court).” It said that the “failure or neglect on their part to do so constitutes non-feasance (Regional Trial Court).”
The Court construed a cleaning up operation as “not only limited to spilled pollutants but also to pollutants discharged in the water like those which emanate from the feces of warm-bloodied animals (Regional Trial Court).” It also ruled that the Courts can direct government officials “by mandamus to act, but not to act one way or the other (Regional Trial Court).”

The Court took note of the trend in involving the Courts to protect and preserve the environment. It cited a paper written by Mr. M.C. Metha of India and delivered at the Symposium on the Judiciary and the Law of Sustainable Development. The paper states that “courts should break away from the traditional straightjacket judicial procedures and practices of administering justice.” It asks the courts to creatively dispense justice and to “give effect to affirmative judicial relief system.”

Decision of the Court of Appeals

The decision of the lower court was eventually elevated to the Court of Appeals. The upper court found the appeal as bereft of merit. It dismissed the appeal and affirmed the decision of the lower court in toto last September 28, 2005.

Case Before the Supreme Court

The aggrieved parties are not satisfied with the decision of the Court of Appeals. They assailed the decision of the upper court. They are now asking the Supreme Court to render a judgment.
During the Oral arguments last August 12, it was clear that the aggrieved parties question the issuance of mandamus and the order to restore the waters of Manila Bay to SB classification. The agencies admitted that what they have done to clean up Manila Bay is not enough. However, they claim, this does not warrant the issuance of a writ of mandamus. They also clarified that the waters of Manila Bay have not been classified; hence, the Court can not order a classification because such mandate and authority belong to the executive branch, particularly to the DENR.

In December 2008, the Philippine Supreme Court finally decided on the case. The news article below was issued by the Supreme Court Public Information Office.

SC Orders Executive Agencies to Clean-up Manila Bay
Posted: December 18, 2008
By Jay B. Rempillo

The Supreme Court today ordered all concerned government agencies to coordinate in the clean-up, restoration, and preservation of Manila Bay.

In a unanimous 36-page decision penned by Justice Presbitero J. Velasco, Jr., the Court ordered petitioner government agencies to coordinate the cleanup, restoration, and preservation of the water quality of the Manila Bay, “a place with a proud historic past, once brimming with marine life and, for so many decades in the in the past, a spot for different contact recreation activities, but now a dirty and slowly dying expanse mainly because of the abject official indifference of people and institutions,” in line with the country’s development objective to attain economic growth in a manner consistent with the protection, preservation, and revival of our marine waters.

The petitioners include the Metropolitan Manila Development Authority (MMDA), Department of Environment and Natural Resources (DENR), Department of Education (DepEd), Department of Health (DOH), Department of Agriculture (DA), Department of Public Works and Highways (DPWH), Department of Budget and Management ((DBM), Philippine Coast Guard (PCG), the Philippine National Police Maritime Group, and the Department of the Interior and Local Government (DILG).

“In light of the ongoing environmental degradation, the Court wishes to emphasize the extreme necessity for all concerned executive departments and agencies to immediately act and discharge their respective official duties and obligations. Indeed, time is of the essence; hence, there is a need to set timetables for the performance and completion of the tasks, some of them as defined for them by law and the nature of their respective offices and mandates,” the Court said.

“The importance of the Manila Bay as a sea resource, playground, and as a historical landmark cannot be over-emphasized. It is not yet too late in the day to restore the Manila Bay to its former splendor and bring back the plants and sea life that once thrived in its blue waters. But the tasks ahead, daunting as they may be, could only be accomplished if those mandated, with the help and cooperation of all civic-minded individuals, would put their minds to these tasks and take responsibility. This means that the State, through petitioners, has to take the lead in the preservation and protection of the Manila Bay,” it stressed.

The case stemmed from the complaint filed by Concerned Residents of Manila Bay before the Regional Trial Court (RTC) in Imus, Cavite against several government agencies for the clean-up, rehabilitation, and protection of the Manila Bay.

The Court denied the petitions and affirmed with modifications the September 28, 2005 decision of the Court of Appeals and the September 13, 2002 decision of the RTC in view of subsequent supervening events in the case. The Concerned Residents of Manila Bay won in the RTC and the CA had sustained the lower court’s ruling.

In its decision on the case at bar, the High Court directed

(1) The DENR to fully implement its Operational Plan for the Manila Bay Coastal Strategy for the rehabilitation, restoration, and conservation of the Manila Bay at the earliest possible time and to call regular coordination meetings with concerned government departments and agencies to ensure the successful implementation of the aforesaid plan of action in accordance with its indicated completion schedules;

(2)The DILG to direct all local government units (LGUs) in Metro Manila, Rizal, Laguna, Cavite, Bulacan, Pampanga, and Bataan to inspect all factories, commercial establishments, and private homes along the banks of the major river systems in their respective areas of jurisdiction, such as, but not limited to, the Pasig-Marikina-San Juan Rivers, Tullahan-Tenejeros Rivers, the Meycauayan-Marilao-Obando (Bulacan) Rivers, the Talisay (Bataan) River, the Imus (Cavite) River, the Laguna De Bay, and other minor rivers and waterways that eventually discharge water into the Manila Bay; and the lands abutting the bay, to determine whether they have wastewater treatment facilities or hygienic septic tanks as prescribed by existing laws, ordinances, and rules and regulations. If none be found, these LGUs shall be ordered to require non-complying establishments and homes to set up said facilities or septic tanks within a reasonable time to prevent industrial wastes, sewage water, and human wastes from flowing into these rivers, waterways, esteros, and the Manila Bay, under pain of closure or imposition of fines and other sanctions;

(3) The MWSS to provide, install, operate, and maintain the necessary adequate waste water treatment facilities in Metro Manila, Rizal, and Cavite where needed at the earliest possible time;

(4) The Local Water Utilities Administration (LWUA), through the local water districts and in coordination with the DENR, to provide, install, operate, and maintain sewerage and sanitation facilities and the efficient and safe collection, treatment, and disposal of sewage in the provinces of Laguna, Cavite, Bulacan, Pampanga, and Bataan at the earliest possible time;

(5) The DA, through the Bureau of Fisheries and Aquatic Resource (BFAR), to improve and restore the marine life of the Manila Bay and to assist the LGUs in Metro Manila, Rizal, Cavite, Laguna, Bulacan, Pampanga, and Bataan in developing, using recognized methods, the fisheries and aquatic resources in the Manila Bay;

(6) The PCG and the PNP Maritime Group to coordinate in apprehending violators of PD 979, RA 8550, and other existing laws and regulations designed to prevent marine pollution in the Manila Bay;

(7) The Philippine Ports Authority (PPA) to immediately adopt such measures to prevent the discharge and dumping of solid and liquid wastes and other ship-generated wastes into the Manila Bay waters from vessels docked at ports and apprehend the violators;

(8) The MMDA, as the lead agency and implementor of programs and projects for flood control projects and drainage services in Metro Manila, to dismantle and remove all structures, constructions, and other encroachments established or built in violation of RA 7279, and other applicable laws along the Pasig-Marikina-San Juan Rivers, the NCR (Parañaque-Zapote, Las Piñas) Rivers, the Navotas-Malabon-Tullahan-Tenejeros Rivers, and connecting waterways and esteros in Metro Manila; also to establish, operate, and maintain a sanitary landfill within a period of one year from finality of this Decision. It is also ordered to cause the apprehension and filing of the appropriate criminal cases against violators of the respective penal provisions of the Ecological Solid Waste Management Act (RA 9003), sec. 27 of RA 9275 (The Clean Water Act), and other existing laws on pollution;

(9) The DPWH, as the principal implementor of programs and projects for flood control services in the rest of the country more particularly in Bulacan, Bataan, Pampanga, Cavite, and Laguna, to remove and demolish all structures, constructions, and other encroachments built in breach of RA 7279 and other applicable laws along the Meycauayan-Marilao-Obando (Bulacan) Rivers, the Talisay (Bataan) River, the Imus (Cavite) River, the Laguna De Bay, and other rivers, connecting waterways, and esteros that discharge wastewater into the Manila Bay;

(10) The DOH within one year from finality of the Decision, to determine if all licensed septic and sludge companies have the proper facilities for the treatment and disposal of fecal sludge and sewage coming from septic tanks. The DOH was further directed to give the companies, if found to be non-complying, a reasonable time within which to set up the necessary facilities under pain of cancellation of its environmental sanitation clearance;

(11) The DepED to integrate lessons on pollution prevention, waste management, environmental  protection, and like subjects in the school curricula of all levels to inculcate in the minds and hearts of students and, through them, their parents and friends, the importance of their duty toward achieving and maintaining a balanced and healthful ecosystem in the Manila Bay and the entire Philippine archipelago;

(12) The DBM to consider incorporating an adequate budget in the General Appropriations Act of 2010 and succeeding years to cover the expenses relating to the cleanup, restoration, and preservation of the water quality of the Manila Bay, in line with the country’s development objective to attain economic growth in a manner consistent with the protection, preservation, and revival of our marine waters;

(13) And the heads of petitioners-agencies MMDA, DENR, DepEd, DOH, DA, DPWH, DBM, PCG, PNP Maritime Group, DILG, and also of MWSS, LWUA, and PPA, in line with the principle of “continuing mandamus”, from finality of the Decision, to each submit to the Court a quarterly progressive report of the activities undertaken in accordance with this Decision.

“The cleanup and/or restoration of the Manila Bay is only an aspect and the initial stage of the long-term solution. The preservation of the water quality of the bay after the rehabilitation process is as important as the cleaning phase. It is imperative then that the wastes and contaminants found in the rivers, inland bays, and other bodies of water be stopped from reaching the Manila Bay. Otherwise, any cleanup effort would just be a futile, cosmetic exercise, or, in no time at all, the Manila Bay water quality would again deteriorate below the ideal minimum standards set by Environment Code (PD 1152), the Philippines Clean Water Act of 2004 (RA 9275), and other relevant laws,” the Court said.

It added, “It thus behooves the Court to put the heads of the petitioner-department-agencies and the bureaus and offices under them on continuing notice about, and to enjoin them to perform, their mandates and duties towards cleaning up the Manila Bay and preserving the quality of its water to the ideal level. Under what other judicial discipline describes as continuing mandamus: the Court, may under extraordinary circumstances, issue directives with the end in view of ensuring that its decision would not be set to naught by administrative inaction or indifference. In India, the doctrine of continuing mandamus was used to enforce directives of the court to clean up the length of the Ganges River from industrial and municipal pollution.”

The Court said the number one cause of pollution of the major river systems and the Manila Bay are the
shanties and other unauthorized structures which do not have septic tanks along the the Pasig-Marikina-San Juan Rivers, Tullahan-Tenejeros Rivers, the Meycauayan-Marilao-Obando (Bulacan) Rivers, the Talisay (Bataan) River, the Imus (Cavite) River, the Laguna De Bay, and other minor rivers and waterways, river banks, and esteros which discharge their waters into the major rivers and eventually the Manila Bay.
The Court said that while the factories and other industrial establishments standing along or near the banks of the Pasig River, other major rivers, and connecting waterways may not be treated as unauthorized constructions, “some of these establishments undoubtedly contribute to the pollution of the Pasig River and waterways.”
The Court noted the The Garbage Book, the Asian Development Bank-commissioned study on the garbage problem in Metro Manila, which reported that “the garbage crisis in the metropolitan area is as alarming as it is shocking.” (GR Nos. 171947-48, MMDA v. Concerned Residents of Manila Bay, December 18, 2008)

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