Wake Up, Philippines!

‘A balanced and healthful ecology’

Posted in Constitution, Environment, Laws by Erineus on February 2, 2009

A PROVISION in the 1987 Constitution, which once some saw as unnecessary, has been gradually gaining attention. Section 16 of Article II says: “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.” In tandem with it is Section 15, which says: “The State shall protect and promote the right to health of the people and instill health consciousness among them.”

Section 16 is unusual among those found in Article II in that, whereas almost all the other provisions in the Article are not self-executing but need implementing legislation to make them effective, Section 16 has been recognized by the Supreme Court as self-executing like the provisions in the Bill of Rights. As early as 1993 the Supreme Court already recognized it, in conjunction with the right to health, as anchoring the right of a group of minors to challenge logging practices in the country. The minors, speaking for themselves and for “generations yet unborn” under the concept of “inter-generational justice,” asked the Court to order a stop to the harmful effects flowing from deforestation. The Court upheld their right to raise the challenge as flowing from their “right to a balanced and healthful ecology” and “the correlative duty to refrain from impairing the environment.”

Not long after that the Court upheld the right of the Laguna Lake Development Authority to be responsible for the ecological protection of Laguna Lake against the claimed authority of the local governments around the lake. The Supreme Court linked Section 16 with the Universal Declaration of Human Rights and the Alma Conference Declaration of 1978.

Along a similar vein, in 2007 the Supreme Court upheld the validity of an ordinance of the City of Manila requiring the oil companies to close and transfer the Pandacan Terminals to another location within a specified period.

The latest on this subject came out only last December. In Metropolitan Manila Development Authority v. Residents of Manila Bay, the Supreme Court ordered various agencies of government to clean up Manila Bay.

All these have come about because of the desire of the state as enunciated in the Constitution to ensure for the people a healthy environment. This constitutional policy, even if already self-executing, has been injected with an element of urgency through various laws.

The latest development on the subject is an ordinance promulgated by the City of Davao ordering a stop to aerial spraying of fungicides in the plantations of Davao. I wrote about this last week saying that this is unfinished business. The ordinance was brought to court and one of the issues was whether conclusive evidence existed to prove that aerial spraying was the cause of ailments reported as affecting some people in the area. The Court of Appeals found no conclusive evidence and saw this as one of the reasons why the ordinance should be invalidated. (Another reason was the alleged impossibility and enormous cost of switching to a different method of speeding fungicides.)

About the issue of lack of evidence, Fr. Jett Villarin, S.J., president of Xavier University in Cagayan de Oro and a scientist whose area of expertise is environmental matters, made some interesting observations in a letter he sent me. He says:

“Environmental laws and regulations must abide by the precautionary principle. This principle simply holds that uncertainty in the science should not be an obstacle or excuse to postpone mitigating action. It is a conservative principle which in the case of scientific uncertainty places the burden of proof on the polluter, not on the affected, i.e. the polluter has the responsibility to prove that what is being spewed into the environment is not harmful. [The Court of Appeals had said that the planters had failed to do this.] Corollary, it is not the responsibility of the affected to prove that the effluent is poisonous. In view of scientific uncertainty, the presumption is that the chemical is harmful.

“Aerial spraying is better deployed in advanced countries where there is mechanized agriculture and land buffers are maintained. In the Philippines and other developing countries, communities live close to the plants and the land they till.

“The degree of harm depends on the lifetime, human exposure and concentration levels of the chemical. These will depend on the state of the atmosphere. Greater control of the dispersion of chemicals is possible in stable atmospheres. Tropical atmospheres are frequently unstable and less predictable. You only need to ask a fisherman who knows how locally unpredictable amihan can be these days.

“If I were a banana plant manager, I would seriously weigh the marginal cost of mitigating the impact of aerial spraying or the total cost of adopting another technology alongside the externality costs of possible medical, rehabilitation, and legal class action in the future. If three months are not enough to change systems, I would negotiate for a protracted withdrawal schedule. Time, like air, can dilute costs.

“If I were a banana farmer, I would try to convince my amo that people are better than planes. People can say thank you. Planes can only fly.

“As a priest, I hope that our judges and our agriculturists see that heaven might be an aerial place and that God’s bottom line might be different from theirs.”

Of course, the last two paragraphs are neither science nor law. But they can be of greater significance than either science or law, or bananas.

By Fr. Joaquin G. Bernas, S.J.
Philippine Daily Inquirer
First Posted 02:18:00 02/02/2009

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