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Neil Andrew L.

Yanson 4L02 22 November 2020

Reaction on the Lecture of Professor Antonio Oposa


Natural Capital and the Law: Land, Air, Water

The concept of sustainable development, in spite of its noble ends, has recently become a
contentious issue during the last century and well into the first decades of the present
one. In our modern age, it appears that economic development, among the three
components of sustainable development, was the first to blossom particularly in the
western world. The industrial revolution had opened the doors to seemingly limitless
economic opportunities for nations to exploit and among the competing theories in
economics, capitalism has so far been the most influential. Of course, the alluring ideas
of socialism and communism have their own adherents, especially in the younger
generation, and it would be naïve to dismiss the honest diagnoses of the ills of capitalism
by the fathers of these twin concepts. Their objections, however, to capitalism have been
mostly focused on the social development aspect of sustainable development and are
aptly the subject of a separate exhaustive disquisition. What this reaction paper
endeavors to discuss based on the lecture is the emerging trend, especially in the legal
realm, of rethinking the current society’s approach to economic development in light of
the increased momentum gained by advocacies on environmental protection and
preservation and the author’s views concerning it.

The economies of the world, with some occasional periods of contraction, have seen an
unprecedented growth during the 20th and 21st centuries. For the most part, technology
has been the moving and indispensable agent. Admittedly, with breakthroughs in
medical science, engineering, banking and finance, among others, the present standard
of living has been significantly improved and life expectancy increased. Yet in spite of
these advancements, we have remained unable to protect ourselves fully from the
destructive effects of environmental disasters and a perennial question stares at us during
these times. What have we given up in attaining such progress? The answer to this
question points to the proverbial elephant in the room – the environment!

It is unfortunate that it would need catastrophes to rouse us from our stupor. In our quest
for progress, we have neglected a fundamental concept in economics: resources are
limited. And as an economic resource, the environment from which the entire flow of
economic production starts is actually finite and subject to depletion.

In the Philippine setting, the protection and wise utilization of our limited natural
resources1 and the right of the people to a balanced and healthful ecology2 have been
enshrined in the state’s charter. Its laws are also not wanting in this regard.3 When it
comes to jurisprudence, the Philippines is actually at the forefront in environmental
advocacy. The case of Oposa v. Factoran4 placed the Philippines in global limelight when
its highest tribunal granted standing to children yet unborn in the name of inter-
generational responsibility. In another case5, while the Supreme Court declined to extend
standing beyond natural and juridical persons, it nevertheless recognized that any
Filipino citizen, as a steward of nature, can bring a suit to enforce our environmental
laws, mindful of the current trend in Philippine jurisprudence “towards simplification of
procedures and facilitating court access in environmental cases.” It is also worth noting

1
Sec. 12, Art. XII, 1987 Philippine Constitution.
2
Sec. 16, Art. II, 1987 Philippine Constitution.
3
Several pieces of legislation address the issue of environment protection and preservation. These include the
Philippine Mining Act (R.A. No. 7942), Clean Air Act (R.A. No. 8749), Ecological Solid Waste Management Act (R.A.
No. 9003), Wildlife Conservation & Protection Act (R.A. No. 9147), and Clean Water Act (R.A. No. 9275), among
others.
4
G.R. No. 10108, July 30, 1993.
5
Resident Marine Mammals of the Protected Seascape Tañon Strait v. Secretary Angelo Reyes, G.R. No. 180771,
April 21, 2015.

1
Neil Andrew L. Yanson 4L02 22 November 2020
that the Philippine Supreme Court was the first to introduce the Writ of Kalikasan,6 a writ
comparable to the writs of amparo and habeas corpus, but one which protects a person’s
constitution right to a balanced and healthful ecology.

What is observable from the above narrative is the move by the Philippine judiciary from
being the passive branch of government to an active instrument towards a fuller
realization of the goals of environmental laws. In the lecture, it was even mentioned that
it was former Supreme Court Associate Justice Adolf Azcuna who introduced Section 16
of Article II of the 1987 Constitution during its deliberations. Professor Oposa recognized
the role of judges (and lawyers) in making environmental laws work. In praising judges
who “think out of the box,” he pointed out the fact that these men of the bench have the
stature to influence the environmental narrative and to have the legal profession seen
once more as the “thinking part of nature.”

While this move appears admirable, especially from the standpoint of environmental
advocacy, and while I agree with the ultimate ends of environmental advocacy, I cannot
but raise my misgivings on the manner in which the ends are being achieved.

When, in Oposa v. Factoran7, the Supreme Court declared Sec. 16, Art. II of the
Constitution to be self-executing and cancelled the existing timber license agreements,
was it not abusing the elasticity of the “grave abuse of discretion” standard in exercising
its judicial power? I echo Justice Feliciano’s sentiments in his separate opinion when he
said that the Supreme Court in declaring the right to a balanced and healthful ecology to
be “one specific fundamental right” has done excessive violence to the language and that
a more specific legal right “cast in language of a significantly lower order of generality
than [that] of the Constitution” should have been invoked instead. In addition, when the
Supreme Court in the same case granted standing to the generations yet unborn to be
represented by children in that suit, was it not abandoning the immemorial
understanding of locus standi in order to justify its cognizance of the case? I submit that
it was stretching the meaning of standing too far when it proposed that the generations
yet unborn have standing. Indeed, our rules on standing have in some cases barred an
actual natural person from suing. What wisdom is there then to allow a group of persons
still within the realm of potentiality and not actuality to be admitted as party litigants?
Of course, the Supreme Court was firm in its stand on this issue when it insisted that
what was involved was “nothing less than self-preservation and self-perpetuation […]
the advancement of which may even be said to predate all governments and
constitutions.” On the question dealing with the rights involved, I do not have any
qualms. What I only wish to point out is that the process of protecting and preserving
the environment, insofar as the judiciary is concerned, should be done within the limits
of the powers granted by the Constitution and in accord with established legal traditions.

The invitation to “think out of the box” sounds appealing. It is even more incentivized
when one believes that he or she is doing what is good. When applied to the judiciary,
the temptation becomes stronger when it is asked to decide upon an issue which,
although capable of resolution by the political departments, was actually caused by the
ineptitude of these same departments.

The cause of the environment is of course paramount in today’s setting. We do not lack
legislation when it comes to the protection and preservation of our environment. What
we are seriously in need of is the pro-active and impassioned execution of these laws.
The judiciary on its part will contribute to this cause by fulfilling its mandate of
interpreting the laws, not of making them. Jus dicere, non jus dare.8 In our republican
system, the doctrine of separation of powers maintains that it is essential for the effective
administration of government that the functions of each department not be trespassed by
another. Justice Holmes was once asked by Judge Hand, “Do justice Sir, do justice!”
Reproving Judge Hand, he said: “That is not my job. It is my job to apply the law.”

6
Rule 7, A.M. No. 09-6-8-SC (Rules of Procedure for Environmental Cases), April 13, 2010.
7
Supra, no. 4.
8
(Lat.) “To declare the law, not to make it.”

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