WRIT OF KALIKASAN
What is a Writ of Kalikasan?
A writ of kalikasan is a legal remedy designed for the protection of one's constitutional right to a healthy environment.
The 1987 Philippine Constitution proclaimed, as one of the policies of the State, the protection of the environment. Section 16, Article II of the Philippine Constitution provides that "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."
This provision, however, is deemed as non self-executing. A non self-executing provision refers to one that cannot be invoked before the courts as it is. There must first be an enabling legislation or some other legal means by which the same can be effectuated and be a basis of a legal cause of action. (See: Tanada v. Angara, G.R. No. 118295. May 2, 1997)
The Philippine Supreme Court then took the initiative in giving flesh to this constitutional mandate. It provided for the writ of kalikasan as the legal means.
Writ of Kalikasan, defined
"Kalikasan" is a Filipino word which in English, means "Nature".
The Writ of Kalikasan means a legal remedy available to any natural or juridical person, entity authorized by law, people's organization, non-governmental organization, or any public interest group accredited by or registered with any government agency, on behalf of persons whose constitutional right to a balanced and healthful ecology is violated, or threatened with violation by an unlawful act or omission of a public official or employee, or private individual or entity, involving environmental damage of such magnitude as to prejudice the life, health or property of inhabitants in two or more cities or provinces. (Rules of Procedure for Environmental Cases A.M. No. 09-6-8-SC Rule 7, Sec. 1)
The writ of kalikasan may be sought by anyone a) whose constitutional right to a balanced and healthful ecology is violated, or b) whose constitutional right to a balanced and healthful ecology is threatened with violation, by an unlawful act of omission of a public official or employee, or private individual or entity and such violation or threat involves “environmental damage of such magnitude as to prejudice the life, health or property of inhabitants of two or more cities, or provinces.” (Rule 7, Section 1)
The petition for the writ of kalikasan “shall be filed with the Supreme Court or with any of the stations of the Court of Appeals.” (Rule 7, Section 3) Note, however, that the filing of a petition for the issuance of the writ of kalikasan shall not preclude the filing of separate civil, criminal or administrative actions. (Rule 7, Section 17)
Within 3 days from filing the petition deemed sufficient in form and substance, the Court shall issue the writ and require the respondent to file a return. (Rule 7, Section 5)
In response, the respondent is required to file a return containing his defenses and supporting evidence within a non-extendible 10-day period after the service to him of the writ. He must raise all defenses in the return, otherwise they are deemed waived. A general denial of the petitioner’s allegations shall be deemed an admission by the respondent. (Rule 7, Section 8) If the petition fails to file a return, the hearing shall proceed ex parte (i.e., the hearing will proceed with only 1 side being heard). (Rule 7, Section 10)
The penalty of indirect contempt may be meted out to a) a respondent who refuses to file the return, b) a respondent who unduly delays the filing of a return, c) a respondent who falsifies a return, or d) any one who disobeys or resists a lawful process of court order. (Rule 7, Section 13)
In further recognition of the importance of a speedy resolution, the following filings are prohibited:
a) motion to dismiss
b) motion for extension of time to file return
c) motion for postponement
d) motion for a bill of particulars
e) counterclaim or cross-claim
f) third-party complaint
g) reply, and
h) motion to declare respondent in default. (Rule 7, Section 9)
However, the following motions are allowed:
When the court receives the return, it may call a preliminary conference “to simplify the issues, determine the possibility of obtaining stipulations or admissions from the parties, and set the petition for hearing.” The petition shall be given the same priority as petitions for the writ of habeas corpus, amparo and habeas data; thus, the hearing and the preliminary conference shall be all done within 60 days (Rule 7, Section 11)
After the hearing, the case shall be submitted for decision in which case, the court may require the filing of memoranda within a non-extendible 30-day period from the date the case is submitted for decision.
Within 60 days from the time the petition is submitted for decision, the court shall grant or deny the privilege of the writ of kalikasan. The reliefs that may be granted under the writ are the following:
a) Directing respondent to permanently cease and desist from committing acts or neglecting the performance of a duty in violation of environmental laws resulting in environmental destruction or damage;
b) Directing the respondent public official, government agency, private person or entity to protect, preserve, rehabilitate or restore the environment;
c) Directing the respondent public official, government agency, private person or entity to monitor strict compliance with the decision and orders of the court;
d) Directing the respondent public official, government agency, or private person or entity to make periodic reports on the execution of the final judgment; and
e) Such other reliefs which relate to the right of the people to a balanced and healthful ecology or to the protection, preservation, rehabilitation or restoration of the environment, except the award of damages to individual petitioners. (Rule 7, Section 15)
Appeal to the Supreme Court, under Rule 45 of the Rules of Court (i.e. a petition for review on certiorari), is available within 15 days from the notice of the judgment or denial of motion for reconsideration. It is important to note that this appeal may raise questions of fact. (Rule 7, Section 16)
This writ is an innovation of the Philippine Supreme Court as one of the legal means to combat the destruction of the environment. This writ is one of a kind, available only within Philippine jurisdiction. It is extraordinary in nature, meaning to say, that it can be resorted to only when other ordinary legal remedies such as injunction or damage suit are unavailing.
The writ of kalikasan forms part of the new procedures in civil, criminal and special civil actions involving environmental laws. (Rule 1, Section 2, Rules of Procedure for Environmental Cases) There are 2 special civil actions in the new rules for environmental cases, one is the writ of continuing mandamaus and the other is the writ of kalikasan.
Features of the Writ of Kalikasan
The underlying condition for the writ to be issued is that, the magnitude requirement with regards to the destruction or imminent destruction of the environment which is sought to be prevented, must be present.
The entities to whom the writ can be directed against, the Rules provides that it could be anybody. They could be public officials, employees or even private persons, for as so long as it could be proven that they violated or threatened with violation the constitutional right to a healthy environment of other people.
The Rules likewise provides for various reliefs that could be granted by the courts under the writ which includes, among others, the issuance of order against the respondent to cease or refrain from committing acts violative of the rights of the petitioners asking for the writ. It can also be an order commanding the respondent to perform positive acts to preserve or protect the environment as well as to make reports of their compliance with these responsibilities. (Rules of Procedure for Environmental Cases A.M. No. 09-6-8-SC Rule 7, Sec. 15)
Writ of Kalikasan, applied
Currently, there are at least two (2) instances wherein the writ of kalikasan was availed of. The first one was directed against an electric power distribution company and the second one was against an oil pipeline operator. The first case is still pending trial while the latter was successfully granted by the Philippine Supreme Court.