Do environmental rights have a place in the Bill of Rights?

By Dr. Emil Q. Javier This is a reaction to a press release from the Consultative Committee (Con-Com) tasked by President Duterte to review the 1987 Constitution. As expressed by its Chairman, former Supreme Court Chief Justice Reynato S. Puno, the Con-Com is keen to recommend that environmental rights be included in the Bill of Rights in the new constitution. We believe this is unnecessary, scientifically naïve, counterproductive and potentially chaotic. Environmental rights are as fundamental as civil and political rights. But unlike the latter which are specific, immutable and precise, environmental rights are relative and dynamic. Their protection and enforcement are progressively enhanced by improvements in science and technology, changes in the environment and evolving needs of society and therefore have to move with the times. The rights to a clean environment are not mentioned in the 1935 and 1973 constitutions, but are recognized as one of the State policies in the 1987 Constitution as Article II Section 16 to wit: The 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. As a broad statement of state policy, Article II Section 16 is not self-executory and judicially enforceable. It had to be backed up by legislation which Congress eventually did with the Clean Air Act of 1999 (RA8749), Ecological Solid Waste Management Act of 2000 (RA9003), and Clean Water Act of 2004 (RA9275), among others. But an activist Supreme Court led by Chief Justice Puno could not wait and invented the Writ of Kalikasan as a legal remedy comparable to the writ of amparo and writ of habeas corpus. However, under normal procedures the burden of proof is on the complainant, but under the Writ of Kalikasan, the tables are reversed and the burden of proof is shifted to the respondent. However, since environmental laws and even the Writ of Kalikasan can be repealed, withdrawn and/or amended through regular legislation by Congress, the advocates in the Con-Com want to go farther and “constitutionalize” environment rights by including them in the Bill of Rights alongside civil and political rights, which can be modified only by amending the Constitution itself. Operational meaning of right to a balanced ecology It is next to impossible to disagree with the ideal of a balanced and healthful ecology, as a broad statement of State policy. We cannot but accept the nobility of its intention and even the elegance of its prose. But the problem begins when one begins to analyze its components and try to operationalize them. What is exactly meant by “balanced ecology”? Ecology is the branch of biology dealing with the relations and interactions between and among living organisms (including man) and their environment. Specifically the question needs to be asked: Which balanced ecology are we referring to? What is the reference or benchmark against which a judgement can be made that one’s right has been abridged? Article II Section 16 does not say. In the celebrated Writ of Kalikasan case against genetically-modified (GMO) eggplant, this ambiguity allowed a biology-challenged magistrate in the Court of Appeals to observe that the introduction of naturally occurring bacterial toxins into a variety of eggplant bred by genetic engineering deprived the poor eggplant fruit worm of food with which to exist and thereby upset the balance of nature. This naïve interpretation of ecological balance if stretched to its logical conclusion makes the whole agriculture (and medicine) guilty of upsetting the balance of nature. After all the intention of agriculture always had been to tilt the balance of nature in favor of man’s needs and purposes. Forests had to be cleared of trees to grow food crops. Lands had to be plowed to set back the weeds that compete with crops. The crops have to be fertilized for them to outgrow the weeds. Crops had to be protected from pathogens and pests by breeding resistant varieties and spraying with pesticides. All these practices upset the existing balance of nature, albeit to another state of equilibrium. But how else can we provide for man’s food, fiber and shelter needs, except for altering the landscape and the balance among organisms inhabiting them? Operational meaning of right to a healthful ecology Healthful ecology as a concept is likewise all-encompassing and covers basic human needs like clean air to breath, clean water to drink and surroundings free of hazardous and infectious solid wastes. Take the case of clean air. Coal and diesel power plants, industrial boilers, cement plants, smelting furnaces and incinerators emit suspended particulates and all sorts of poisonous gases and heavy metals. Cars, motorcycles, buses, boats and airplanes which move people and goods around are likewise heavy sources of air pollutants. Clearly they all violate our rights to clean air under Article II Section 16 of the constitution. Shall the state demand that they cease to operate? But if the state does, what do we replace them with? Wouldn’t that be irresponsible? For sure the economy will ground to a halt. Banning the operations of these stationary and mobile sources of air pollution invoking Article II Section 16, is unreal and illogical. The proper course of action is to regulate them: set pollution emission standards, monitor implementation, provide incentives for compliance, and impose fines and imprisonment for offenders. But as newer, more efficient and cleaner technologies and machines are invented, the standards need to periodically upgrade and made more stringent. How these necessary and moving aspects of environmental rights can be accommodated in the Bill of Rights without making the new constitution even more verbose than the current constitution defy the imagination. Conclusion Article II Section 16 of the 1987 Constitution as a statement of state policy to recognize and protect the rights of Filipinos to a balanced and healthful ecology while noble in intent and elegant in prose is too broad and general to be self-executory and legally enforceable. While the majority of justices in the High Court seem to agree that this infirmity had been cured by the Writ of Kalikasan, not all are in agreement. In the landmark case of Oposa vs Factoran et al, the Supreme Court set aside the decision of a regional trial court dismissing the civil case filed by petitioners demanding that DENR cancel all timber licenses agreements and cease/desist in processing, renewing and approving new timber license agreements, on the ground that these timber licenses violate their right to a balanced and healthful ecology. Justice F. Feliciano while concurring with the majority had this to say: “There is no question that the right to a balanced and healthful ecology is “fundamental,” and that accordingly it has been “constitutionalized” but it cannot be characterized as “specific” without doing excessive violence to language. Justice Feliciano further notes: … The legal right which is an essential component of a cause of action (should) be a specific operable legal right rather than a constitutional or statutory policy, for at least two reasons. One is that unless the legal right claimed to have been violated or disregarded is given specification in operational terms, defendants may well be unable to defend themselves intelligently and effectively (deprives defendants of their right to due process) Second, when substantive standards as general as “the right to a balanced and healthful ecology” are combined with remedial standards as broad-ranging as “grave abuse of discretion amounting to lack or excess of jurisdiction,.. These propel the courts into unchartered ocean of social and economic policy making… Further, Justice Feliciano opines that where no specific operable norms and standards are shown to exist, the policy making departments – the legislative and executive departments – must be given a real and effective opportunity to fashion and promulgate those norms and standards, and to implement them before the courts should intervene. Thus it is best that protection of environment rights be kept as a State Policy, reinforced by relevant legislation, not as articles under the Bill of Rights. The concepts of a balanced and healthful ecology are dynamic, moving targets and are heavily influenced by advances in science and technology, changes in the environment and evolving needs of society. Freezing them in the Constitution and worse, detailing them in The Bill are of Rights are not in our national interest. They will be out-of-date in no time. The Coalition for Agricultural Modernization of the Philippines (CAMP) proposes that Article II Section 16 be re-cast as follows: The 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 as guided and protected by advances in science and technology.

* Dr. Emil Q. Javier is a Member of the National Academy of Science and Technology (NAST) and also Chair of the Coalition for Agriculture Modernization in the Philippines (CAMP). For any feedback, email eqjavier@yahoo.com.