Human rights lawyer Neri Colmenares noted some points of interest raised during the 2024 National Summit on Sustainability and Environmental Law, including stronger legal protection for environmental defenders, the timeliness of environmental cases, and the coverage of the Writ of Kalikasan.
Puerto Princesa City, the country’s first Green Justice Zone, hosted this year’s National Summit on Sustainability and Environmental Law from November 27-30, where over 200 environmental and legal experts, along with other stakeholders, gathered to assess the country’s current laws and legal procedures on environmental cases.
Colmenares, first nominee for the Bayan Muna party-list and a council member of the International Bar Association (IBA) Human Rights Institute, noted some challenges in the country’s procedures that could be improved with further deliberation.
The most pressing issue he identified was the need to change the coverage of the Writ of Kalikasan. This legal remedy is used in cases where the constitutional right to a balanced and healthful ecology is violated. It has been used to stop actions causing large-scale environmental harm—such as in August last year, when the Supreme Court issued the Writ against the Department of Environment and Natural Resources and mining operators in Mt. Mantalingahan in Brooke’s Point.
Colmenares stated that the scope of the Writ should be expanded.
“May requirement na ang kailangan na ang environmental destruction or impact is covering two provinces or cities. Marami sa mga participants ang nagsabi na mahirap ‘yun, kasi there are certain areas na wala namang kalapit na probinsya,” he said.
He noted that it would be harder for island provinces like Palawan, as there is no land boundary shared with another province. Palawan likewise only has one highly urbanized city.
Colmenares suggested that the law should clearly include “municipalities” as part of the prerequisites for the Writ of Kalikasan.
While there is precedent for issuing the Writ of Kalikasan for environmental cases covering multiple municipalities—such as in the aforementioned August 2024 case involving the Mt. Mantalingahan range, which spans Bataraza, Brooke’s Point, Sofronio Española, Quezon, and Rizal—he noted that trials could proceed more swiftly if this provision were explicitly written into the law.
Precautionary measures
Colmenares also advocated that courts should always err on the side of caution when deciding on cases whose environmental impact is not yet fully determined.
He cited the 2016 case involving Bt Talong, a genetically modified eggplant engineered by the University of the Philippines – Los Baños (UPLB) that contained natural protein from soil bacteria, making it resistant to the eggplant fruit and shoot borer insect, which plagued eggplant production in the Philippines.
The Writ of Kalikasan and continuing mandamus was petitioned by Greenpeace Southeast Asia (Philippines), purporting that Bt Talong’s use of crystal compounds from the soil posed possible harm to humans, along with potentially introducing more harmful genetically modified organisms (GMOs) to the country.
The Writ of Kalikasan was dismissed by the Supreme Court as it was filed after the field trials were already completed.
Colmenares said that the uncertainty of scientific proof affected the case, but that courts should side with precaution in similar situations.
“‘Ayun ang issue doon, kasi maraming judges ang nagdedemand ng scientific certainty. Kung ikaw ay naglalaban sa isang mining company, at hindi mo na-prove with scientific certainty na ‘yung sakit ng mga tao sa community ay dahil doon sa usok, ay wala kang laban,” he said.
He added that courts should also explore the lack of expert witnesses in such cases and should include indigenous peoples and local community workers as expert witnesses for local and indigenous sciences.
He noted that environmental cases were commonly between a large corporation and a small community group.
While companies could easily find expert witnesses for water, air, and noise pollution, it was harder for smaller groups to find such witnesses, especially as it was expensive to hire someone with the proper knowledge, training, and skills typically required in court.
“‘Sa rules, baguhin, to include indigenous knowledge as expert witness. He doesn’t need to have a PhD, all you have to do is present somebody in court with indigenous knowledge, to say na ang pagkulay, for example ng yellow sa ilog — in that sense.”
As a former member of the House of Representatives and a candidate in next year’s election, Colmenares said that bills aimed at changing or amending laws to include such provisions needed consultation with the sectors involved, as exemplified during the summit.
He underlined the importance of members from these sectors consistently showing up for hearings to ensure their voices are heard in person instead of through a representative.
He said that most bills fail on the floor due to the presence of other loud voices. For instance, representatives from mining companies would often attend hearings to state their needs, while smaller sectors were unable to do so.
Colmenares noted that this was one of the plans for the Bayan Muna party-list, as one of their nominees was Eufemia Cullamat, a member of the Lumad indigenous group who previously served as a congresswoman.
Natural defenses
Colmenares further stated some challenging discussions, namely possible harsher prohibitions on the use of the Strategic Lawsuit Against Public Participation (SLAPP) and speedier trials concerning continuing mandamus.
SLAPP is a legal action akin to a “slap” to the wrist for environmental defenders, where they are unduly harassed with a lawsuit when criticizing persons or companies involved in cases causing environmental harm. A person involved in such a case may file documents, affidavits, papers, and other evidence that the suit filed against them was a SLAPP case intended to pressure them into dropping their pursuit of environmental protection.
This was a particular defense raised by former Mayor of Brooke’s Point, Mary Jean Feliciano in a motion for reconsideration filed in 2021 in the Ombudsman. Feliciano had previously shut down Ipilan Nickel Corporation’s (INC) mining operations in 2018 after discovering that they were cutting down trees within the protected area of Mt. Mantalingahan.
INC stated that they had the necessary permits, along with the defense that their 25-mining year contract was older than the declaration for the protected area, as well as having an environmental compliance certificate (ECC) from the Palawan Council for Sustainable Development (which was later recalled).
INC filed with the Ombudsman against Feliciano, as they claimed that they filed an appeal for the ECC that was revoked by then-environmental secretary Gina Lopez in 2016, which meant that the decision on their status was not final when Feliciano ordered the stop to their operations.
Feliciano was found guilty of grave abuse of authority by the Ombudsman in 2021.
During the 2024 summit, it was proposed that SLAPP be raised as a defense in as early in the case as the preliminary investigation.
”Ibig sabihin, kakasuhan ka pa lang, sa fiscal pa lang, i-raise mo na iyon. ‘SLAPP ito eh. Kaya naman ako kinakasuhan dito dahil nagreklamo ako- [nagsalita] ako tungkol sa farmers, sa land reform, sa environment,’ ganun,” he said.
Furthermore, he added that it was illegal to blame or arrest dissenting voices, regardless of whether it was an environmental case or not, and that it should also be addressed by the executive branch as well.
Time was one of the elements that affected environmental cases, as Colmenares noted. Due to external effects such as climate change, legal procedures for such cases should be hastened accordingly.
Continuing the writ of mandamus, which is a remedy available only for environmental cases, should also be observed accordingly.
Temporary Environmental Protection Orders (TEPO) can be converted to a permanent EPO, or the case be otherwise issued the writ.
The writ of mandamus compels the performance of government agencies to perform acts that will satisfy the judgment given by the courts.
“May inuutusan yung korte minsan na mga LGU or kompanya, na linisin niyo yung Manila Bay, halimbawa. Sampung taon na iyan. Hanggang kailan ba yung continuing mandamus? Ayun ang na-discuss. Kasi ayaw naman ng mga environmental lawyer na forever iyon, dapat linisin. Kaso, minsan mabagal ang mga LGU.”
Speedy trials are needed due to the continued rate of global warming affecting the environment. Manila Bay’s sea level is rising by 2.6 cm. per year, according to the Philippine Climate Change Assessment Report on July 2024. Projections made by Greenpeace East Asia in 2021 noted that Manila may be submerged as soon as 2030.
Conflicts of law
The courts have the final say in interpreting the law. Colmenares emphasized that human rights also include environmental rights- and when both are in conflict, the judiciary will exercise their power to ensure a fair outcome.
When asked to weigh in on a local concern about the indigenous Tagbanua peoples desiring to live within their ancestral domain- which overlapped with the protected watershed area in Brgy. Irawan- he stated that conflicts of two laws should arrive at a compromise.
”Di mo naman pwedeng sabihin na hindi sila pwedeng pumasok, ancestral domain nila iyan. Hindi mo naman categorically and absolutely masabi that they cannot enter the watershed area. Ang harmonization diyan, pwede silang pumasok but in such a way na ma-regulate din, at hindi nila ma-endanger ang watershed area,” he noted.
This year’s National Summit on Sustainability and Environmental Law focused particularly on climate resilience, with the theme of “Enabling Environmental and Climate Justice – Bridging Science and Laws for Responsive Rules and Sustainable Development.”
