MANILA – One justice after another posed almost the same question to writ of kalikasan petitioners during Tuesday’s oral arguments at the Supreme Court: What exactly do you want the court to do?
From Associate Justice Francis Jardeleza who calls the reliefs being asked for “very vague” to Associate Justice Alfredo Benjamin Caguioa who said “I don’t get it,” SC justices grilled the counsels of petitioners Integrated Bar of the Philippines and fisherfolk from Palawan and Zambales.
Petitioners have accused the Philippine government of neglect in protecting the environment and marine resources in the West Philippine Sea, urging the high court to compel different government agencies to do their mandate under various Philippine laws such as the Philippine Fisheries Code and Presidential Decree 1599 which created the country’s exclusive economic zone (EEZ).
The EEZ extends 200 nautical miles from the country’s baseline. The United Nations Convention on the Law of the Sea (UNCLOS) reserves the right to explore and use resources in the area exclusively to the coastal state.
Among the omissions they cited is the failure of government officials to file criminal cases against those responsible for destroying the environment and marine resources in the Ayungin (Second Thomas) and Panatag (Scarborough) shoals as well as the Panganiban (Mischief) Reef.
The 2016 South China Sea Arbitral Tribunal had found China responsible for severe destruction in these areas due to its construction of artificial islands and installations as well as the large-scale harvesting of endangered species by Chinese-flagged vessels.
Caguioa however pointed out that even if the Philippine Fisheries Code imposes penalties of imprisonment from 5 to 20 years, the UNCLOS prohibits imprisonment and other corporal punishments for domestic laws covering the EEZ.
“So in other words, what you’re saying is — government you’re not doing enough, you’re supposed to file cases, catch them, file cases against them, but you can’t, because UNCLOS says you can’t imprison them, so in the end, we will just be impounding the vessel which they can recover by posting a bond?” he said.
Caguioa also noted that the incidents subject of the petition took place years ago.
“Are you not asking for the impossible? 2012, 2013, 2015, for these vessels that may no longer be there, and you cannot even certify as a fact that they are still there. Are you not asking the impossible?” he asked.
“If it’s just a matter of prosecuting fishermen, I think the return has already shown the efforts of the respondents of complying with environmental laws. If you’re saying that that is not enough, that they should file cases against the people who were found by the arbitral tribunal, those inside the ships. Are you not asking the impossible?” he added.
Fellow Associate Justice Rosmari Carandang asked how petitioners intend to hail violators to Philippine courts if they are not identified.
Associate Justice Ramon Paul Hernando, for his part, questioned why officials from the previous administrations were not included in the petition, including Caguioa himself who had served as Justice secretary from October 2015 to January 2016.
“[Y]ou are alleging continuing negligence or omission not just by officials in the current admin but also the officials of the Aquino administration. That’s where political color comes into play in these proceedings,” he said.
Jardeleza raised the same issue. Jardeleza served as Solicitor General during the time of former President Benigno Aquino III and was part of the legal team that participated in the SCS arbitral proceedings in The Hague.
In response, former Dean Chel Diokno, one of the counsels for petitioners, explained that they only impleaded the current heads of government agencies in their public capacities.
“The omissions or violations that were committed as alleged in the petition should have been the subject of some sort of action at the very least by the government, if not by the past admin, then by those who succeeded them,” he said.
“We acknowledge that the former admin was careful not to affect the ongoing arbitration at the time, but this admin, nothing is stopping them from enforcing our laws,” he added.
But Jardeleza was unconvinced. He pointed out that the previous administration’s act of filing the case against China before the SCS arbitral tribunal was part of government’s response to the violations.
He also faulted petitioners for failure allege that the crimes are still being committed.
“I cannot find anything here that says the violations are continuing. Not only you have no allegations, no judicial affidavits and you blame new officials that came in 2016 for all those acts that happened, damaging to us very severely, before the officials came in?,” he said.
“As the government is arguing, your petition fails to state a cause of action—not a technical matter, it is a matter of due process of law. It should be dismissed because you deprive the respondents the ability to answer,” he stressed.
Associate Justice Diosdado Peralta, one of the justices who drafted the writ of kalikasan, scored petitioners for failure to submit judicial affidavits with the petition, highlighting the factual nature of the proceedings.
The Court of Appeals has recently junked a petition for a writ of amparo and habeas filed by Karapatan and other rights groups due in part to failure of petitioners to submit judicial affidavits.
But petitioners IBP and fisherfolk maintained that they have purposely limited the scope of their petition to matters which have been the subject of the Philippine government’s submission to the SCS arbitral tribunal so that the Supreme Court can take judicial notice of the facts alleged and do away with determination of factual issues in the petition.
Associate Justice Marvic Leonen, who was designated in charge of the petition, directed petitioners to cover the issues raised in their memorandum.
The Office of the Solicitor General is expected to present the respondents’ side on July 9.
Named as respondents in the petition are the environment, agriculture and justice departments, Bureau of Fisheries and Aquatic Resources (BFAR), Philippine Navy, Philippine Coast Guard (PCG), Philippine National Police (PNP) and the PNP Maritime Group.