Becoming Our Own Champion: Continuing Mandamus and Civil Society
Chief Justice Verma (1997) held in Vineet Narain v. Union of India that it is futile to issue a simple writ of mandamus in certain cases. This case involved investigations of a political and financial scandal involving prominent leaders, which was widely known as the Jain Diaries or the Hawala Scam. The concept of a writ of continuing mandamus first appeared in this case to direct the investigation of the offenses and to report the progress to the Supreme Court of India, to ascertain that the investigations were free from any impression of bias or lack of fairness or objectivity and to ensure their credibility. This case particularly shows how the writ of continuing mandamus can be an act wherein the Court issues directions, keeps the matter pending, and requires the agencies to submit progress reports to monitor continuous compliance (Dash, 2017).
Nevertheless, even before this case, , there were several environmental cases in which the Indian Supreme Court directed Parties to act in a similar manner. For example, in Bandhua Mukti Morcha v. Union of India (1983), the Court directed the state to ensure the welfare of the workers and continue to oversee the actions being taken. Similarly, in M.C. Mehta v. Union of India (1988), the Court convened a committee of experts with a view toward eradicating the pollution in Ganga river. Continuing mandamus was also clearly exercised in Indian Council for Enviro-Legal Action v. Union of India (1996), agencies were directed to enforce the laws that prevent water pollution and submit management plans for the Court to examine.
Continuing Mandamus in the Philippines
Garbage washed ashore on Manila Bay. Photo Credit: Business Mirror
The Philippine Supreme Court adopted the remedy of continuing mandamus from Indian jurisprudence. It was initially introduced in the Philippines through the case of MMDA v. Concerned Residents of Manila Bay (2008), where it was alleged that the water quality of Manila Bay was below the allowable standard set by the Philippine Environment Code. It was argued that the water quality posed a clear and present danger to public health, and contributed to the depletion and contamination of the marine life of Manila Bay. The Supreme Court Decision ordered the mandated government agencies to clean up Manila Bay and restore its water quality so that it would again be fit for swimming, skin-diving, and other forms of recreation. Continuing Mandamus was ordered in order to avoid administrative inaction or indifference. Relevant government agencies received specific directives based on their legal mandates and duties and were likewise required to submit a quarterly progressive report of the activities undertaken in accordance with the decision.
The Supreme Court likewise created the Manila Bay Advisory Committee in a later Resolution (2011). This Committee is directed to receive and evaluate the Court-mandated quarterly progress reports on the activities undertaken by the government agencies for the rehabilitation and preservation of Manila Bay. The Committee also recommended time frames for the agencies to perform their tasks. Following the case of MMDA v. Concerned Residents of Manila Bay (2008), continuing mandamus was codified in the Rules of Procedure for Environmental Cases (A.M. No. 09-6-8-SC). Under Section 4(c), Rule 1, continuing mandamus was defined as a writ issued by a court on an environmental case, directing any agency or instrumentality of the government or officer thereof to perform an act or series of acts decreed by final judgment which shall remain effective until judgment is fully satisfied. Aside from performance of acts or series of acts, the court can also require the submission of periodic reports detailing the progress and execution of the judgment, and the court may, by itself or through a commissioner or the appropriate government agency, evaluate and monitor compliance.
Satisfaction Rating: Continuing Mandamus Performance Review
Akbayan Citizens’ Action Party, a democratic socialist and progressive political party in the Philippines, filed a pleading before the Supreme Court last September 14, 2020 to hold the Department of Environment and Natural Resources (DENR) in contempt for the alleged violation of the continuing mandamus issued in the Decision of MMDA v. Concerned Residents of Manila Bay (2008). As a part of the Manila Bay Rehabilitation Program arising from the 2008 Decision, the DENR spearheaded a beach nourishment project. This said project overlays the Manila Bay Beach with crushed dolomite boulders extracted and shipped from Cebu, creating an artificial white sand beach. It claims to appear like Boracay in Aklan province (Gotinga, 2020). Akbayan claimed that the dumping of dolomite sand to achieve Boracay-like beach in Manila Bay is a detriment to the ecosystem and will never make the waters fit for swimming, skin-diving, and other forms of contact recreation. This action is said to be a clear and direct violation of the continuing mandamus that orders the government agencies, including DENR, to rehabilitate Manila Bay (Buan, 2020).
Akbayan files Motion to cite DENR in contempt for Dolomite Beach Project.
Photo credit: Jansen Romero, Manila Bulletin
A Motion for Leave to Intervene was filed by Akbayan to proceed to the Motion to cite DENR in Contempt. The Motion for Leave to Intervene is to ask the Court for permission to participate because Akbayan was not originally a part of the MMDA v. Concerned Residents of Manila Bay (2008) case from which the continuing mandamus was issued (Buan, 2020). The Motion for Leave to Intervene, however, was denied by the Supreme Court through a Resolution as published in the full statement of the Supreme Court of the Philippines - Public Information Office (2020). The Court held that the case had been rendered final and executory and that its jurisdiction was limited only to the full implementation of the mandated reliefs. This meant that Akbayan intervention was not viable because the case had long been concluded with finality, and is now in the process of being executed albeit still under judicial supervision.
The Akbayan Chair Emeritus, Etta Rosales, released a statement to address the denial of the Motion for Leave to Intervene. Rosales expressed her disappointment with the Supreme Court, stating that the denial of their request equates to failure to help the public, the safety and sustainability of the Manila Bay in light of the DENR dolomite sand dumping. She further exclaims that the Supreme Court lost its opportunity to protect the rights of Filipinos to a balanced and healthful ecology (Patag, 2020).
Akbayan stood by their claims that relied on the scientific evidence and expert opinions of marine scientists from the University of the Philippines and other highly-respected environmental groups. The research of the Institute of Environmental Science & Meteorology University of the Philippines Diliman (2020) shows that dolomite is a naturally occurring mineral that has low carcinogenic levels that may affect humans. This, however, may be amplified in the food chain through marine species from Manila Bay. It has also been found that long exposure to dolomite, as observed in dolomite miners, causes respiratory problems. Ultimately, the dumping of dolomite sand in Manila Bay is akin to dumping foreign sediments that can potentially bury habitats of marine animals and plants, lower oxygen levels in seawater, and block access to sunlight. These enumerated effects of dolomite gravely affect both human health and the biodiversity of the area.
In response to the mounting criticisms towards the Manila Bay Dolomite Beach, the Supreme Court asked the DENR for a submission of the effects of dolomite on people. The DENR affirms that dolomite is not hazardous to health. The crushed dolomite is 100 times bigger than dust, therefore does not get suspended in air. Chief Justice Peralta, chair of the Supreme Court Manila Bay Advisory Committee designated to monitor the compliance of the government agencies, stated in an interview that the DENR more than complied with its obligations under the continuing mandamus and was satisfied with the impressive improvement to clean the water (Buan, 2020).
Rights and Remedies: Final and Executory Decision
The Supreme Court reiterated the doctrine of finality of judgments in the case of Social Security System v. Isip (2007), it reads: A judgment becomes “final and executory” by operation of law. Finality becomes a fact when the reglementary period to appeal lapses and no appeal is perfected within such period. As a consequence, no court can exercise appellate jurisdiction to review a case or modify a decision that has become final. When a final judgment is executory, it becomes immutable and unalterable. It may no longer be modified in any respect either by the court which rendered it or even by the Supreme Court.
In the case of Taisei Shimizu Joint Venture v. COA (2020), the Supreme Court enumerated the exceptions to the doctrine of finality of judgments. It included: (1) the correction of clerical errors; (2) the making of so-called nunc pro tunc entries that cause no prejudice to any party; and (3) in case of void judgments. The relaxation of the rigid rule has been further allowed by the Supreme Court in order to serve substantial justice in considering: (1) matters of life, liberty, honor, or property; (2) the existence of special or compelling circumstances; (3) the merits of the case; (4) a cause not entirely attributable to the fault or negligence of the party favored by the suspension of the rules; (5) a lack of any showing that the review sought is merely frivolous and dilatory; or (6) the other party will not be unjustly prejudiced thereby.
Remedies available, if judgment is final and executory under the 2019 Rules of Court, are petition for annulment of judgment (Rule 47), petition for relief from judgment (Rule 38), and petition for certiorari (Rule 65). The aforementioned remedies seek to annul, set aside, or reverse judgment. In light of the existing Rules, people and civil organizations, such as Akbayan, that are discontent with the implementation of the continuing mandamus have no available remedy in Court to raise valid concerns. They do not seek to annul, set aside, or reverse judgment that issued the continuing mandamus. They merely seek for the proper implementation of the continuing mandamus.
In the case of Manila Bay, the root of arising concerns is the insufficient execution of the continuing mandamus. Local communities and civil organizations, however, cannot file for a motion for execution (Rule 39). When a motion for execution is granted, the court issues a writ of execution containing the dispositive portion of the judgment. The writ is then presented to the relevant parties to satisfy the judgment. The relevant government agencies implementing the continuing mandamus in Manila Bay, specifically DENR, have been executing the judgment. As the Court held in a Resolution published in the Supreme Court of the Philippines - Public Information Office (2020), DENR has not been in any violation of the continuing mandamus. The DENR has not been remiss in its reportorial duty to the Manila Bay Advisory Committee which contains a record of the works accomplished, concluded, and maintained within Manila Bay according to the writ of continuing mandamus’ direction. Notwithstanding the said compliance of the DENR, the concerns of civil society relating to the execution of the continuing mandamus refers to whether the compliance of DENR and the rest of the mandamus agencies are substantial and not at all detrimental to the rehabilitation and preservation of the Manila Bay.
In the annotated Rules of Procedure for Environmental Cases (A.M. No. 09-6-8-SC), the writ of continuing mandamus “permits the court to retain jurisdiction after judgment in order to ensure the successful implementation of the relief mandated under the court’s decision”. Aside from the submission of reports to the Court or other means of monitoring compliance to the decision, an exception to the rule of final and executory judgment shall be made to let civil society intervene in the monitoring as well as evaluating the compliance to better facilitate the successful implementation of the continuing mandamus.
Justice Velasco, Jr. (2008) emphasized the importance of Manila Bay as a sea resource, playground, and as a historical landmark. Oceana (2023), a nonprofit ocean conservation organization, cites that Manila Bay is a center of biodiversity with various species of shellfish and fish, including a newly-discovered species of sardines called Sardinella Pacifica. This serves as proof that the Bay is capable of hosting marine life and providing food supply for the country (Bucay, et.al., 2021). It also serves as a stopover for different species of migratory birds and has fruit-bearing mangroves, which help prevent erosion and absorb storm impact. Manila Bay holds economic importance as well according to the DENR. It houses Philippines’ biggest shipping ports, ferry terminals, fish port, and yachting marina. All of these in consideration, the residents of Manila Bay are not the only interested parties in the case. The whole Philippine civil society is also aggrieved by the unlawful acts and/or omissions of the mandamus agencies. Hence, the civil society may be considered as a party-in-interest that may rightfully intervene with the case.
The effects of environmental issues, such as in the Manila Bay case, is not exclusive to the few residing in close proximity; rather it has implications for all of society. We all dwell on Earth and take from the environment to thrive in our everyday lives. We all have a role to play in the restoration and preservation of our dying world. The continuing mandamus is an innovation that properly mobilizes relevant government agencies for the fulfillment of their mandates. It has been more than a decade since the issuance of continuing mandamus for the rehabilitation of Manila Bay but, despite the ruling, there is little to no evidence of progress in the Manila Bay. It is high time that the continuing mandamus be better utilized as a tool for environmental protection for the case of Manila Bay and future cases that may call for the same level of urgency. Civil society should start demanding more than bare compliance from relevant agencies that hold the power and authority to make a difference in the battle against climate change. We need substantial compliance, wherein the actions taken are objectively aligned with the set goals. While it is the Court that monitors and guides the execution of the continuing mandamus, civil society should reserve the right to intervene as the affected population. To enhance the assessment of the needed compliance, it is just and right that civil society be provided with remedies to intervene and even review the execution of the continuing mandamus. There are a number of advocates and organizations passionate towards environmental causes. Some are even tapped by the government agencies for assistance. Civil society no longer passively awaits relevant government agencies to step forward and be proper champions, they became champions themselves. All that is missing is a space to directly amplify their voice.
Note: Jazzerie Sales was a legal intern from the 2023 Summer Internship Program of Parabukas. This article is her individual contribution to on-going discourse on her chosen environmental issue.
References
Annotation to the Rules of Procedure for Environmental Cases. A.M. No. 09-6-8-SC (2010)
Buan, L. (2020). Akbayan Pleading to cite DENR in contempt and Motion for Leave to Intervene. Rappler. Retrieved from: https://twitter.com/rapplerdotcom/status/1308992005624803330
Buan, L (2020). Supreme Court wants DENR to submit study on dolomite on people. Rappler. Retrieved from https://www.rappler.com/nation/supreme-court-ruling-denr-submit-study-dolomite-effect-people/
Bucay, et. al. (2021). A Technical Analysis on the Manila Bay Dolomite Beach Reclamation Project. Philippine Journal of Public Policy: Interdisciplinary Development Perspectives. Retrieved from https://www.researchgate.net/profile/Tara-Abrina/publication/354926237_A_Technical_Analysis_on_the_Manila_Bay_Dolomite_Beach_Reclamation_Project/links/616dc95fb90c51266269dadb/A-Technical-Analysis-on-the-Manila-Bay-Dolomite-Beach-Reclamation-Project.pdf
Dash, S. (2017). Writ of Continuing Mandamus in matters of PILCs: A Step towards Development of Environmental Jurisprudence. IOSR Journal of Humanities and Social Sciences, 22(8), 26-35. Retrieved from https://www.iosrjournals.org/iosr-jhss/papers/Vol.%2022%20Issue8/Version-9/E2208092635.pdf
Gotinga, J. (2020). IN PHOTOS: Artificial white sand beach on Manila Bay. Rappler. Retrieved from https://www.rappler.com/nation/look-artificial-white-sand-beach-manila-bay-opens/
Institute of Environmental Science & Meteorology University of the Philippines Diliman (2020). Environmental Impacts of Dolomite Sand on the Marine Environment of Manila Bay. Retrieved from https://iesm.science.upd.edu.ph/wp-content/uploads/2020/09/Manila-Bay-Statement_IESM_29Spe20-final.pdf
MMDA v. Concerned Residents of Manila Bay. G.R. Nos. 171947-49 (December 18, 2008)
MMDA v. Concerned Residents of Manila Bay (Resolution). G.R. Nos. 171947-49 (February 15, 2011)
Patag, K. (2020). Akbayan tells SC: You lost chance to help determine safeness of ‘Manila Bay Sands’ project. Philippine Star. Retrieved from https://www.philstar.com/headlines/2020/11/20/2058278/akbayan-tells-sc-you-lost-chance-help-determine-safeness-manila-bay-sands-project
Social Security System v. Ma. Fe Isip. G.R. No. 165417 (April 4, 2007)
Supreme Court of the Philippines - Public Information Office (2020). SC Denies Akbayan’s Motion to Intervene in Manila Bay Case. Retrieved from https://www.facebook.com/rapplerdotcom/posts/read-supreme-court-denies-akbayans-petition-for-intervention-which-attempted-to-/4028703663817053/
Taisei Shimizu Joint Venture v. COA. G.R. No. 238671 (June 2, 2020)
The Rules of Procedure for Environmental Cases. A.M. No. 09-6-8-SC (2010)
The Revised Rules of Court in the Philippines (As Amended by A.M. No. 19-10-20-SC)
Vineet Narain v. Union of India. 1 SCC 226 (December 18, 1997)