The Illusion of Intergenerational Equity: Oposa v. Factoran as

Pyrrhic Victory

By: Dante B. Gatmaytan

I. INTRODUCTION

One of the most famous and celebrated cases in the history of the Philippine Supreme Court is

Oposa v. Factoran.1 For almost a decade now, Oposa has continued to earn praises as a

significant decision in environmental protection. The case was unorthodox even in its inception:

children from all over the country filed a case to compel the Secretary of the Department of

Environment and Natural Resources (DENR) to cancel all existing Timber License Agreements

(TLA) and to prevent him from renewing or processing any new applications. The suit was based

on the novel theory of "intergenerational justice" - the children claimed that they represented not

only their generation, but also "generations yet unborn."2

Oposa has attained what might be called celebrity status. It is cited as a "significant,"

"innovative" case, "likely to become something of a landmark in the jurisprudence of sustainable

development."3 According to one author, the Philippines Supreme Court "announced a powerful

and influential exposition of intergenerational rights in the context of environmental

protection."4 Oposa is virtually a staple of international environmental law scholarship,5 which

is rarely critical of the case.6

This interest, however, is actually generated only in the international arena and not in the

Philippines. Antonio Oposa, Jr., the Counsel for the petitioners in the case, acknowledged as

much when he presented his assessment of impact of the case:

Although hardly known in the country's legal community, the case has been the subject of

extensive citation, analysis, and comment in international law circles. Perhaps because it is the

first case decided by the highest court of a country which discussed and implemented what had

heretofore been a rhetorical call for responsibility to future generations for the world's natural

resources. Furthermore, it brings to the fore - in the personal voice of our children - the imminent

likelihood that our generation's wanton use of the earth's resources will inevitably adversely

impact our children's generation and generations yet unborn.7

The incongruent reception of Oposa may be due to the fact that the international legal

community misunderstands the case. In contrast to this dominant interpretation, this Article will

show that Oposa adds barely anything new either to Philippine jurisprudence or to the cause of

environmental protection, and that it has faded from the practice of law because it does not

strengthen the legal arsenal for environmental protection. In this Article, I wish to show that

Oposa is overrated for several reasons.

First, Oposa, for all the praise it has earned, did not affect government conduct in the protection

of the environment. The Supreme Court did not order the cancellation of the TLAs, but ordered

the case to be remanded for trial. Because the petitioners did not pursue the case after it was

remanded, no TLA was cancelled.

Second, while many point to the case as one that recognizes standing to sue for future

generations,8 the Court's statement to that effect is obiter dictum therefore, not binding as

precedent. Only a few correctly point out that the case recognizes a cause of action for

environmental protection.9

Third, even if "standing" had been an issue before the Supreme Court, Philippine case law has

always adopted a liberal approach to questions pertaining to standing to sue. The Supreme Court,

by relying on case law, could have either assumed the existence of the children's standing to sue

or waived the requirement completely.

Fourth, the use of "intergenerational equity" - invoking the rights of future generations - while

intellectually titillating, is ultimately useless in the resolution of the case. The Philippine

Supreme Court would have decided Oposa exactly the same way had the children filed the case

solely on their own behalf. In cases involving the protection of the environment, the distinction

between present and future generations is inconsequential - we cannot protect the rights of future

generations without protecting the rights of the present.

Fifth, the protection of the rights of future generations was already inscribed in Philippine law

and jurisprudence even before the ratification of the 1987 Constitution and the promulgation of

Oposa.

Finally, I want to show that despite these shortcomings, Oposa should ultimately be celebrated,

not because of the Supreme Court's remarks about intergenerational responsibility and standing

to sue for future generations, but because it held that the constitutional provision on the right to a

balanced and healthful ecology is an actionable right that is superior to the Bill of Rights. Oposa

remains a potential tool, although its possible uses seem to elude advocates of environmental

protection.

II. THE CASE

A. THE TRIAL COURT DECISION

Oposa v. Factoran was a taxpayers' class suit originally filed with the Regional Trial Court of

Makati City. The petitioners were minors represented and joined by their parents and the

Philippine Environmental Network, Inc., a non-profit corporation organized for the purpose of

concerted action geared for the protection of the environment and natural resources. The children

claimed that they were "entitled to the full benefit, use, and enjoyment of the natural resource

treasure that is the country's virgin tropical rainforests."10 As such, they prayed that judgment be

rendered ordering the Secretary of Environment and Natural Resources, his agents,

representatives, and other persons acting on his behalf to cancel all existing timber license

agreements11 in the country and to desist from receiving, accepting, processing, renewing, or

approving new timber license agreements.12

The defendant filed a motion to dismiss the petition on the grounds that (a) the plaintiffs had no

cause of action against him; and (b) the issue raised by the plaintiffs was a political question that

should be addressed to the legislative or executive branch of the Government.

The trial court granted the motion and held that:

After a careful and circumspect evaluation of the complaint, the Court cannot help but agree with

the defendant. For although we believe that the plaintiffs have but the noblest of all intentions, it

[sic] fell short of alleging, with sufficient definiteness, a specific legal right they are seeking to

enforce and protect, or a specific legal wrong they are seeking to prevent and redress (Sec. 1,

Rule 2, RRC). Furthermore, the Court notes that the Complaint is replete with vague

assumptions and vague conclusions based on unverified data. In fine, plaintiffs fail to state a

cause of action in its [sic] complaint against the herein defendant.

Furthermore, the Court firmly believes that the matter before it, being impressed with political

color and involving a matter of public policy, may not be taken cognizance of by this Court

without doing violence to the sacred principle of 'Separation of Powers' of the three (3) co-equal

branches of the Government.13

The trial court added that to grant the relief prayed for would amount to an "impairment of

contracts," in the belief that TLAs are contracts, which are protected under the non-impairment

clause of the Constitution.14

The children then filed a petition for certiorari with the Supreme Court asking it to set aside the

trial court's order dismissing the case.15 In essence, the petition raised three issues before the

Supreme Court: (a) whether the plaintiffs had a cause of action; (b) whether the issue involved a

political question over which the Supreme Court could not assume jurisdiction; and (c) whether a

timber license agreement is a contract protected by the non-impairment clause of the

Constitution.

B. THE SUPREME COURT DECISION

Before the Supreme Court addressed these issues, it decided to "focus on some procedural

matters,"16 despite the fact that the respondents "did not take issue with this matter."17

Nevertheless, the Court stated that the children's case receiving, accepting, processing, renewing,

or approving new timber license agreements.12

The defendant filed a motion to dismiss the petition on the grounds that (a) the plaintiffs had no

cause of action against him; and (b) the issue raised by the plaintiffs was a political question that

should be addressed to the legislative or executive branch of the Government.

The trial court granted the motion and held that:

After a careful and circumspect evaluation of the complaint, the Court cannot help but agree with

the defendant. For although we believe that the plaintiffs have but the noblest of all intentions, it

[sic] fell short of alleging, with sufficient definiteness, a specific legal right they are seeking to

enforce and protect, or a specific legal wrong they are seeking to prevent and redress (Sec. 1,

Rule 2, RRC). Furthermore, the Court notes that the Complaint is replete with vague

assumptions and vague conclusions based on unverified data. In fine, plaintiffs fail to state a

cause of action in its [sic] complaint against the herein defendant.

Furthermore, the Court firmly believes that the matter before it, being impressed with political

color and involving a matter of public policy, may not be taken cognizance of by this Court

without doing violence to the sacred principle of 'Separation of Powers' of the three (3) co-equal

branches of the Government.13

The trial court added that to grant the relief prayed for would amount to an "impairment of

contracts," in the belief that TLAs are contracts, which are protected under the non-impairment

clause of the Constitution.14

The children then filed a petition for certiorari with the Supreme Court asking it to set aside the

trial court's order dismissing the case.15 In essence, the petition raised three issues before the

Supreme Court: (a) whether the plaintiffs had a cause of action; (b) whether the issue involved a

political question over which the Supreme Court could not assume jurisdiction; and (c) whether a

timber license agreement is a contract protected by the non-impairment clause of the

Constitution.

B. THE SUPREME COURT DECISION

Before the Supreme Court addressed these issues, it decided to "focus on some procedural

matters,"16 despite the fact that the respondents "did not take issue with this matter."17

Nevertheless, the Court stated that the children's case satisfied the requisites of a valid class suit

under the Rules of Court.18

The Court then proceeded to discuss a "special and novel"19 element of the suit: the plaintiffs'

assertion that they represented their generation, as well as generations yet unborn.

The Court accommodated this position, stating:

We find no difficulty in ruling that they can, for themselves, for others of their generation and for

the succeeding generations, file a class suit. Their personality to sue in behalf of the succeeding

generations can only be based on the concept of intergenerational responsibility insofar as the

right to a balanced and healthful ecology is concerned. Such a right, as hereinafter expounded,

considers the "rhythm and harmony of nature." Nature means the created world in its entirety.

Such rhythm and harmony indispensably include, inter alia, the judicious disposition, utilization,

management, renewal and conservation of the country's forest, mineral, land, waters, fisheries,

wildlife, off-shore areas and other natural resources to the end that their exploration,

development and utilization be equitably accessible to the present as well as future generations.

Needless to say, every generation has a responsibility to the next to preserve that rhythm and

harmony for the full enjoyment of a balanced and healthful ecology. Put a little differently, the

minors' assertion of their right to a sound environment constitutes, at the same time, the

performance of their obligation to ensure the protection of that right for the generations to

come.20

The Supreme Court said that the right to a balanced and healthful ecology also created an

obligation for every person to preserve the environment. It is this obligation that is the basis of

any citizen's standing to sue.

In short, the Supreme Court said that the petitioners' suit was a valid class suit, and that the

petitioners had standing to sue for themselves and future generations, although the petitioners'

case raised neither issue. Only then did the Court "proceed to the merits of the petition."21

1. Did The Plaintiffs Have a Cause of Action?

The Supreme Court disagreed with the lower court and stated that the complaint focused on the

right to a balanced and healthful ecology. The Constitution provides that "[t]he 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."22 The Court explained that while this provision is found under

the Declaration of Principles and State Policies, and not the Bill of Rights, it does not follow that

it is less important than any of the civil and political rights enumerated in the latter. Such a right

belongs to a different category of rights altogether for it concerns nothing less than self-

preservation and self-perpetuation - aptly and fittingly stressed by the petitioners - the

advancement of which may even be said to predate all governments and constitutions. As a

matter of fact, these basic rights need not even be written in the Constitution for they are

assumed to exist from the inception of humankind.23

The Court went on to explain that the right to a balanced and healthful ecology carries with it a

correlative duty to refrain from impairing the environment. The right implies the judicious

management and conservation of the country's forests.24

The Court further observed that provisions of Executive Order No. 192, series of 1987, (creating

the DENR)25 and the Administrative Code of 1987 declare it to be the policy of the State to

ensure the sustainable use, development, management, renewal, and conservation of the

country's forest.26 Both laws, said the Court, set these objectives, which provide the basis of

policy formulation.27 It also pointed out that decrees issued prior to the ratification of the 1987

Constitution, such as the Philippine Environmental Policy28 and the Philippine Environment

Code,29 already paid attention to the environmental rights of present and future generations.30

After a reading of these laws, the Court concluded that the right to a balanced and healthful

ecology is as clear as the DENR's duty to protect and advance said right. It found that a denial or

violation of that right by the party who has the correlative duty or obligation to respect or protect

the same gives rise to a cause of action.31

2. Were the Issues Raised Political Questions?

The Supreme Court likewise disagreed with the trial court's finding that the issue in this case

involved a political question, which would have been beyond the jurisdiction of the Supreme

Court. It said: "Policy formulation or determination by the executive or legislative branches of

Government is not squarely put in issue. What is principally involved is the enforcement of a

right vis-a-vis policies already formulated and expressed in legislation."32 The Court also

pointed out that even if the matter were a political question, judicial power has been expanded

under the 1987 Constitution to include:

the duty of the courts of justice to settle actual controversies involving rights which are legally

demandable and enforceable, and to determine whether or not there has been a grave abuse of

discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality

of the Government.33

Citing jurisprudence, the Supreme Court pointed out that the present Constitution expands

judicial review to cover "political questions."34

3. Are TLAs Protected by the Non-Impairment Clause of the Constitution?

The Court also said that the timber license agreements were not contracts within the purview of

the non-impairment clause of the Constitution, but were only licenses that could be validly

withdrawn whenever dictated by public interest or public welfare.35 It further pointed out that

even if TLAs were considered contracts, the due process clause could not be invoked because the

case did "not involve a law or even an executive issuance declaring the cancellation or

modification of existing timber licenses."36 The Court went on to say that even if a law

mandated the cancellation of timber license agreements, it would be justified as a police power

measure.37

The Supreme Court set aside the order of the trial court granting Secretary Factoran's motion to

dismiss. The Court remanded the case for trial, stating that "[t]he petitioners may therefore

amend their complaint to implead as defendants the holders or grantees of the questioned timber

license agreements."38

C. THE SEPARATE OPINION

Ten justices concurred with the majority decision written by Justice Hilario G. Davide, Jr.,39 and

three justices took no part in the deliberations.40 In a separate opinion, Justice Florentino

Feliciano maintained that Oposa was one of the most important cases decided by the Court in the

last few years41 and that the principles laid down in the decision were "likely to influence

profoundly the direction and course of the protection and management of the environment . . .

."42 Nevertheless, he took issue with the majority on several points.

The gist of his opinion was that neither the petitioners nor the Court had identified a right upon

which the petitioners could base their claim. In his view, the constitutional provision on the right

to a balanced and healthful ecology may be fundamental, but it is not specific.43 According to

Justice Feliciano, all the laws cited by the Court to show the existence of a cause of action, such

as Executive Order No. 192, series of 1987, the Administrative Code, and the Philippine

Environmental Policy, "all appear to be formulations of policy, as general and abstract as the

constitutional statements of basic policy in Article II, Sections 16 . . . and 15 . . . ."44

On the other hand, he pointed out, the Philippine Environment Code was merely "a compendious

collection of more 'specific environment management policies' and 'environment quality

standards' . . . . [N]either petitioners nor the Court has identified the particular provision or

provisions (if any) of the . . . Code which give rise to a specific legal right which petitioners are

seeking to enforce."45 He added that the Code does not "appear to contemplate action on the part

of private persons who are beneficiaries of implementation of that Code," as it only identifies the

government agencies charged with the formulation and implementation of guidelines and

programs dealing with air, water, land use, and natural resources management.46 In his view,

such a specific right might exist in Philippine law, and the plaintiffs should have been afforded

an opportunity to identify it, rather than being denied such an opportunity by the trial court

granting defendant's motion to dismiss.47

Furthermore, Justice Feliciano pointed out that the Court's approach - combining the substantive

standards of the Constitution with the remedy sought by the children (petition for certiorari) -

would hurl the Supreme Court into social and economic policy-making. He warned that the

Court is not prepared to undertake this task because of its lack of special technical competence,

experience, and professional qualification in the area of environmental protection and

management.48

He also concurred in the result of the decision, but added that "[t]he doctrines set out in the

Court's decision issued today should, however, be subjected to closer examination."49 Justice

Feliciano's opinion was prompted by an attempt to clarify to himself, "what the Court appear[ed]

to be saying."50

Apart from his disagreement regarding the legal basis for the children's petition, Justice Feliciano

raised two questions that the Supreme Court had created by its decision: First, since the Court

seemed to be recognizing a beneficiaries' right of action in the field of environmental protection,

it is unclear whether such a right of action "may be found under any and all circumstances, or

whether some failure to act, in the first instance, on the part of the governmental agency

concerned must be shown."51 The Court failed to discuss, he pointed out, whether there must be

an exhaustion of all administrative remedies before a case may be filed in court for redress of

one's environmental rights. Second, since the Court remanded the case to the trial court with an

order to implead the holders of TLAs, what then were the holders to litigate about?52

I understand the Separate Opinion to be a polite reminder to the rest of the Court that the ruling

they were promulgating could not be easily implemented. But how exactly would Oposa play out

in environmental litigation? As I attempt to show here, Oposa barely creased the legal landscape,

raising questions as to why it generates excitement elsewhere in the world but remains obscure in

the Philippines. We must, therefore, exert effort to understand what exactly the Court said.

III. UNDERSTANDING OPOSA

A. TIMBER LICENSE AGREEMENTS WERE NOT CANCELLED

It should be stressed that the children wanted the Secretary of the DENR to cancel all TLAs and

to desist from processing new applications. My review of Oposa shows that the Supreme Court

did not order the cancellation of existing TLAs or issue an order to the DENR to desist from

renewing or processing any applications. The case revolved around a procedural question:

whether the case was properly dismissed by the regional trial court for petitioners' failure to

establish a cause of action. To quote, the Court held:

WHEREFORE, being impressed with merit, the instant Petition is hereby GRANTED, and the

challenged Order of respondent Judge of 18 July 1991 dismissing Civil Case No. 90-777 is

hereby set aside. The petitioners may therefore amend their complaint to implead as defendants

the holders or grantees of the questioned timber license agreements.53

The Court remanded the case to the trial court and ordered the plaintiffs to implead all holders of

TLAs as indispensable parties in such further proceedings. The Supreme Court's decision,

therefore, was merely an initial step toward the resolution of the case. The Supreme Court

reversed the trial court's decision to dismiss the case because the children had a cause of action,

the issues raised were not "political questions," and TLAs were not contracts under the contracts

clause of the Constitution.

As Justice Feliciano pointed out, however, it is not even clear what would have been litigated in

the lower court. Even if we knew what they would have litigated, the magnitude of the work

required to implead all TLA holders cannot be overstated because this would entail bringing

dozens of defendants to court. One might even wonder why persons holding TLAs should be

impleaded. If, the Court stated, TLAs are only licenses that could be validly withdrawn

whenever dictated by public interest or public welfare, then the Secretary should be allowed to

cancel them without impairing their due process rights.

In any case, the children did not pursue the case after it was remanded to the trial court. No TLA

was ever cancelled pursuant to the Court's ruling in Oposa. Commercial logging continues in the

Philippines, and there is nothing that will prevent the DENR from renewing or processing

applications for TLAs. Neither the Supreme Court nor the trial court ordered the Secretary to

desist from doing so.

Put simply, the children initially wanted to stop the practice of issuing TLAs because it impaired

their right to a balanced ecology. Since the practice continues, it is difficult to see how Oposa

can be construed as a victory for the environment.

The most recent data from the DENR's Forest Management Bureau show that as of December

31, 2001, there are still eighteen active TLAs all over the Philippines, covering 813,949 hectares

of forestland. There are also two inactive TLAs covering 96,066 hectares, and another eleven

suspended TLAs covering another 432,958 hectares.54 Technically, a total of 1,342,962 hectares

of forestland are still covered by TLAs. There is nothing to show that the Philippine environment

has improved.55

It might be argued that this is still a significant drop in the number of TLAs issued by the

DENR,56 but there is no evidence that this reduction is a consequence of the Court's decision in

Oposa. In fact, when Fulgencio Factoran served as the Secretary of the DENR, from 1987 to

1992, he did not want to issue any new TLAs and also sought the cancellation of TLAs of

companies that failed to comply with government regulations.57 The reduction in the number of

TLAs, therefore, was among the thrusts of Factoran's turn at the helm of the DENR even before

Oposa was decided.

B. THE SUPREME COURT DID NOT RULE ON STANDING TO SUE

As I pointed out at the beginning of this Article, Oposa is often cited for the Court's alleged

recognition of the rights of future generations. Strangely, the Supreme Court never made a ruling

on this issue, although it did make a ruling on the existence of the children's cause of action.

Thus, everything the Court said about standing to sue for future generations is obiter dictum.

Perhaps international interest in Oposa may be explained by the fact that "standing to sue" is a

huge obstacle for environmental protection advocates in some jurisdictions. The U.S. Supreme

Court, for example, has tightened the rules on standing by requiring strict compliance with the

"case or controversy" requirement of the Constitution. To be accorded standing, first and

foremost, there must be alleged (and ultimately proven) an "injury in fact" - a harm suffered by

the plaintiff that is "concrete" and "actual or imminent," and not merely "conjectural" or

"hypothetical." Second, there must be causation - a fairly traceable connection between the

plaintiff's injury and the complained-of conduct of the defendant. And third, there must be

redressability - the likelihood that the requested relief will redress the alleged injury.58

In contrast, the rules on standing in the Philippines are less stringent. As I will illustrate below,

standing in Philippine litigation may either be assumed to exist or may be waived completely

under certain circumstances. In the latter case, one does not need standing to litigate.

"Standing" and "cause of action" are two different concepts that are governed by separate

provisions of the Rules of Court. Standing to sue revolves around the question of who the proper

parties are in a suit. The "proper party" requirement is satisfied if it is alleged that petitioners and

intervenors have sustained or are in danger of sustaining immediate injury resulting from the acts

or measures complained of.59 One who is directly affected by and whose interest is immediate

and substantial in the controversy has standing to sue. A party must show a personal stake in the

outcome of the case or an injury to himself that can be redressed by a favorable decision, so as to

warrant an invocation of the court's jurisdiction and to justify the exercise of the court's remedial

powers on his behalf.60 The Rules of Court provide:

A real party in interest is the party who stands to be benefited or injured by the judgment in the

suit, or the party entitled to the avails of the suit. Unless otherwise authorized by law or these

Rules, every action must be prosecuted or defended in the name of the real party in interest.61

In contrast, the Rules of Court define a "cause of action" as "the act or omission by which a party

violates a right of another."62 For a cause of action to exist, there must be: (a) a right in favor of

the plaintiff, by whatever means and under whatever law it arises or is created; (b) an obligation

on the part of the defendant to respect, or not to violate, such right; and (c) an act or omission on

the part of said defendant constituting a violation of the plaintiff's right or a breach of the

defendant's obligation to the plaintiff.63

Secretary Factoran never challenged petitioners' standing to sue. In his motion to dismiss, he did

not allege that the parties had no legal interest in the case or that they were not the proper parties

to the suit. Rather, he alleged that petitioners had not identified a specific right that he had

allegedly impaired, so as to entitle the children to relief from the courts. The defendant, in short,

merely questioned the existence of a cause of action.

Even the Supreme Court was aware of this. In the introductory portions of its decision, the Court

explained that the case "touches on the issue of whether the said petitioners have a cause of

action to 'prevent the misappropriation or impairment' of Philippine rainforests and 'arrest the

unabated hemorrhage of the country's vital life-support systems and continued rape of Mother

Earth.' "64 In fact, the Court's entire discussion of standing to sue was preceded by an admission

that the respondents "did not take issue with this matter."65

The distinction between standing to sue and cause of action is also emphasized by the fact that

the Court resolved both questions on different grounds. The children had standing because they

had an obligation "to ensure the protection of that right for the generations to come."66 They had

a cause of action because the DENR had a duty to protect and advance their right to a balanced

and healthful ecology and the Secretary of the DENR had allegedly violated this right with the

continued issuance of TLAs.67 The violation of this right gave rise to a cause of action.68

Had Oposa implicated standing, then the decision would have been significant. Oposa broadens

earlier rulings on who are "proper parties" in a suit. In Philippine law, the real party in interest

has been restricted to:

the party who stands to be benefited or injured by the judgment, or the party entitled to the avails

of the suit. "Interest" within the meaning of the rule means material interest, an interest in issue

and to be affected by the decree, as distinguished from mere interest in the question involved, or

a mere incidental interest . . . .69

Oposa overruled the more restrictive ruling of the Supreme Court in Lozada v. Commission on

Elections.70 In that case, the Court denied a petition to review a decision of the Commission on

Elections, which had refused to call an election to fill vacancies in the Batasang Pambansa

(National Legislature). The Court held that:

Petitioners' standing to sue may not be predicated upon an interest of the kind alleged here,

which is held in common by all members of the public because of the necessarily abstract nature

of the injury supposedly shared by all citizens. Concrete injury, whether actual or threatened, is

that indispensable element of a dispute which serves in part to cast it in a form traditionally

capable of judicial resolution. When the asserted harm is a "generalized grievance" shared in

substantially equal measure by all or a large class of citizens, that harm alone normally does not

warrant the exercise of jurisdiction . . . .

. . . .

Even his plea as a voter is predicated on an interest held in common by all members of the public

and does not demonstrate any injury specially directed to him in particular.71

Oposa recognized standing in the broadest possible sense by including even those who are not

yet born - even future citizens who are not persons under Philippine law.72 But the Supreme

Court did not have to discuss "standing" because it was never raised as an issue.

The pronouncement on standing is obiter dictum as it touched upon a matter that was not raised

expressly by the petitioner, and therefore, it was not a prerequisite in disposing of the case.73 In

other cases, the Supreme Court has ruled that a remark made or opinion expressed by a judge in

a decision upon a cause, incidentally or collaterally, and not directly upon the question before the

court, or upon a point not necessarily involved in the determination of the cause, is obiter dictum,

lacks the force of an adjudication, and is not to be regarded as such.74 Obiter dicta are opinions

"entirely unnecessary for the decision of the case" and thus "are not binding as precedent."75 Of

course, the Philippine Supreme Court has also held that dictum is generally not binding as

authority or precedent within the stare decisis rule but may be followed if sufficiently

persuasive.76 But until that happens, Oposa's rule on standing has no binding effect on any

Philippine court.77

Even if standing to sue for future generations becomes standard legal doctrine, it will not

necessarily lead to the protection of the environment. The courts will still have to rule on

whether the challenged acts - in this case, the issuance of TLAs - impair the right to a balanced

and healthful ecology. The petitioners in Oposa wanted the cancellation of TLAs and a ban on

any further processing of TLA applications. If the case had been pursued in the regional trial

court, the only way that the children could have prevailed was by convincing the court that the

practice of issuing TLAs violates their constitutional right to a balanced and healthful ecology. I

doubt that the courts would enjoin certain economic activity simply because the environment is

somehow impaired, and I suspect that they would be at a loss to determine what standard to use

before any such action can prevail. In fact, a defendant in such a case might remind the courts

that Article XII of the Constitution provides for the exploitation of the country's natural

resources.

C. PHILIPPINE RULES ON STANDING ARE LENIENT

Even if "standing" had been an issue, Philippine case law is consistent in holding that in similar

cases standing may either be assumed or entirely waived by courts.

1. Standing to Sue May Be Assumed

Perhaps the respondent did not take issue with the question of standing because it would have

been difficult if not impossible to defend such an assertion. Indeed, under the facts of Oposa, the

issue of standing could have been simply assumed by the Supreme Court.

It will be recalled that the Court concluded that the right to a balanced and healthful ecology "is

as clear as the DENR's duty . . . to protect and advance the said right."78 The constitutional

provision recognized a right and imposed a duty. The petitioners, therefore, could have filed a

special civil action for mandamus to restrain the defendant from further parceling out what is left

of the Philippine forests. There are cases in the Philippines that recognize a citizen's interest and

personality to procure the enforcement of a public duty and to bring an action to compel the

performance of that duty.79 In Tanada v. Tuvera, a case filed to compel publication of

Presidential Decrees issued by then-President Ferdinand Marcos, the Court held:

[W]hile the general rule is that "a writ of mandamus would be granted to a private individual

only on those cases where he has some private or particular interest to be subserved, or some

particular right to be protected, independent of that which he holds with the public at large," and

that "it is for the public officers exclusively to apply for the writ when public rights are to be

subserved [Mitchell v. Boardmen, 79 M.E., 469 J.]," nevertheless, "when the question is one of a

public right and the object of the mandamus is to procure the enforcement of a public duty, the

people are regarded as the real party in interest, and the relator at whose instigation the

proceedings are instituted need not show that he has any legal or special interest in the result, it

being sufficient to show that he is a citizen and as such interested in the execution of the laws

[High, Extraordinary Legal Remedies, 3rd ed., [sec] 431]."80

Further, the Court said:

Clearly, the right sought to be enforced by petitioners herein is a public right recognized by no

less than the fundamental law of the land. If petitioners were not allowed to institute this

proceeding, it would indeed be difficult to conceive of any other person to initiate the same,

considering that the Solicitor General, the government officer generally empowered to represent

the people, has entered his appearance for the respondents in this case.81

In another case, the Court explained, "[w]hen a mandamus proceeding involves the assertion of a

public right, the requirement of personal interest is satisfied by the mere fact that the petitioner is

a citizen, and therefore, part of the general "public" which possesses the right."82

The situation in Tanada was mirrored in Oposa. The petitioners in Oposa sought the enforcement

of a public right recognized by the Constitution - the right to a balanced and healthful ecology -

and the performance of a public duty on the part of the DENR. Likewise, the Solicitor General

entered his appearance for the government. The petitioners were all Filipino citizens and part of

the general public. The facts of Oposa, therefore, fit precisely into these established rules, and as

such the petitioners could have filed a special civil action for mandamus and cleared the

"standing requirement" with ease.

2. Lack of Standing May Be Waived

The Philippine Supreme Court adheres to a liberal policy with regards to locus standi. In

Kilosbayan, Inc. v. Guingona, the Court said, "[a] party's standing . . . is a procedural technicality

which the Court may, in the exercise of its discretion, set aside in view of the importance of the

issues raised."83 Standing may be brushed aside when the "transcendental importance to the

public of these cases demands that they be settled promptly and definitely, brushing aside, if we

must, technicalities of procedure."84 In taxpayers' suits, such as Oposa, the Court "is not devoid

of discretion as to whether or not [the issue of standing] should be entertained."85

The cases reiterating the Court's leniency are legion.86 In Kapatiran ng mga Naglilingkod sa

Pamahalaang Pilipinas, Inc. v. Tan, the Court once more stated that:

Objections to taxpayers' suits for lack of sufficient personality, standing or interest are, in the

main, procedural matters. Considering the importance to the public of the cases at bar . . . this

Court has brushed aside technicalities of procedure and has taken cognizance of these

petitions.87

In Association of Small Landowners in the Philippines, Inc. v. Secretary of Agrarian Reform, the

Court said:

With particular regard to the requirement of proper party as applied in the case before us, we

hold that the same is satisfied by the petitioners and intervenors because each of them has

sustained or is in danger of sustaining an immediate injury as a result of the acts or measures

complained of. [Ex Parte Levitt, 303 US 633]. And even if, strictly speaking, they are not

covered by the definition, it is still within the wide discretion of the Court to waive the

requirement and so remove the impediment to its addressing and resolving the serious

constitutional questions raised.88

Again, in Kilosbayan, the Court pointed out that ordinary citizens and taxpayers have already

been allowed to question the constitutionality of several executive orders issued by the President,

"although they were invoking only an indirect and general interest shared in common with the

public."89 It added:

In line with this liberal policy, ordinary taxpayers, members of Congress, and even associations

of planters, and non-profit civic organizations were allowed to initiate and prosecute actions

before this Court to question the constitutionality or validity of laws, acts, decisions, rulings, or

orders of various government agencies or instrumentalities.90

In essence, under Philippine law the Supreme Court does not dismiss a case simply because the

parties do not have standing to sue. It may completely disregard the rule on standing, "even when

there is no direct injury to the party claiming the right to judicial review,"91 and it may entertain

a suit "which does not satisfy the requirement of legal standing when paramount interest is

involved."92

Thus, even if standing had been the central issue in Oposa, the Supreme Court could have

similarly waived the technicality. In the Court's own words, the right to a balanced and healthful

ecology "concerns nothing less than self-preservation and self-perpetuation."93 The Supreme

Court has ruled that the regulation of rentals for houses and lots for residential buildings,94

gambling,95 and rate-fixing in violation of the Public Service Act96 are all of transcendental

importance sufficient to disregard the procedural requirement of standing. It is difficult to

imagine how anything could be more transcendental than the preservation of the human species.

Given the magnitude of the issues raised in Oposa, the Court could have waived the "standing"

requirement.

D. INTERGENERATIONAL EQUITY HAS NO PRACTICAL EFFECT

Others might claim that even if the weight of the case law suggests that the Court would have

waived the standing requirement, the fact is that all these decisions refer to present but not future

generations. But would this have mattered? A judicial declaration on "intergenerational equity"

does not serve any practical purpose. At most, "standing to sue for future generations" is quaint

or intellectually stimulating. However, there was no need to invoke the rights of future

generations because the present generation can always file a case to enjoin any action that

impairs its right to a balanced and healthful ecology.

If Oposa was designed to stop the practice of issuing TLAs, then any person could have simply

filed the case on her own behalf and the result would have been the same: the petitioner would

still have had a cause of action and standing to sue. The issues raised would still have been

recognizable by the Supreme Court. TLAs would still be beyond the protection of the non-

impairment clause of the Constitution. The Supreme Court would have granted the petition and

remanded the case for trial on the merits all the same. In short, petitioners still would have won

their Supreme Court case and would have landed right back in the regional trial court where the

case started, even without invoking the rights of future generations. Does the Supreme Court's

pronouncement on standing to sue for future generations really make any difference?

E. INTERGENERATIONAL EQUITY IS ALREADY LAW IN THE PHILIPPINES

It cannot even be said that, at the very least, intergenerational equity is now part of Philippine

law because of Oposa. The Court's "recognition" of the rights of future generations is not novel.

It was already law even before this case was decided. Many Philippine laws already mandate the

conservation of the country's resources for the benefit of future generations. The Constitution,

statutes, and case law together mandate the use of natural resources without impairing the needs

of future generations. This was the law even before Oposa. Would a judicial declaration on

intergenerational equity carry more weight than those repeatedly made by the legislature?

1. The Constitution Was Intended to Protect the Rights of Future Generations

The constitutional provision on the right to a balanced and healthful ecology is new; it has no

parallel in the previous constitutions of the Philippines. The original proposal for the

constitutional provision was worded thus:

Section 18. The State recognizes the human right to a healthy environment and the singular

demand of nature to follow its own rhythm and harmony. The State shall therefore maintain

ecological balance even as it harnesses our natural resources for the common good and the

sustenance of future generations.97

Significantly, the framers intended to incorporate the concept of intergenerational equity into the

fundamental law of the land. The deletion of the reference to "future generations" is not

significant because the Commission agreed that the provision comprehends future generations, as

the following exchange shows:

THE PRESIDENT. Are we ready now for the final formulation?

MR. AZCUNA. May I read it once more, Madam President: "THE STATE SHALL PROTECT

AND ADVANCE THE RIGHT OF THE PEOPLE AND THEIR POSTERITY TO A

BALANCED AND HEALTHFUL ECOLOGY IN ACCORD WITH THE RHYTHM AND

HARMONY OF NATURE."

MR. ROMULO. Madam President, may I suggest the deletion of "POSTERITY" for the sake of

economy of words, because I think Commissioner Padilla is right. What we pass here is for now

and the future.

MR. AZCUNA. "THE PEOPLE" means the present and future generations; we agree.

MR. ROMULO. Yes.98

From this exchange alone, it is clear that the provision already mandates the protection of the

rights of future generations.

The Records of the Constitutional Commission reveal, however, that the introduction of the right

to a balanced and healthful ecology into the Constitution was met with some skepticism. There

was an attempt to simply combine this provision with another on the right to health.

Commissioner Bias Ople crushed the attempt to fuse the two provisions. He said:

To be sure, we ought to have a strong and powerful statement in the Declaration of Principles

concerning the ecology in terms of its impact on health, but also for other equally humane and

noble purposes and having in mind the danger of the exhaustion of resources. In the case of

forests, this can mean eternal flooding . . . .99

There were also observations made to the effect that the entire provision is in fact "within the

inherent power of the State under its police power,"100 or that the new formulation contains

"beautiful words, but they have no substantial meaning."101 It was proposed that the poetry be

eliminated in favor of simpler prose. Again, Ople objected and emphasized that the provision

was meant to be more than rhetoric:

I believe this is far from being meaningless or a hollow statement. It conveys a powerful sense of

the very real problems that we face. Having violated the rhythm and harmony of nature with the

rape of our forests and lakes, we have to take seriously the admonition of many experts that if

nothing drastic is done by the government and the people in 50 years, we can be a desert [sic],

Madam President . . . .102

The discussion that followed, however, suggests that the Commission intended to promote more

government action against persons engaged in environmentally destructive acts, rather than

action against the government. To quote further:

MR. VILLACORTA. Does this section mandate the State to provide sanctions against all forms

of pollution? Air, water, and noise pollution?

MR. AZCUNA. Yes, Madam President. The right to a healthful environment necessarily carries

with it the correlative duty of not impairing the same and therefore, sanctions may be provided

for impairment of environmental balance.

MR. VILLACORTA. Correspondingly, does this mean that under this section there will be

protection provided to human communities surrounding airports, military bases, and factories?

MR. AZCUNA. There may be insofar as such mentioned matters contribute to harming the

environment or the quality of the human environment.

MR. VILLACORTA. In other words, it is protection not only to the life and limb of these human

communities but to their psychological welfare as well.

MR. ASCUNA. Insofar as it related to causes from the environment such as noise, for example,

which is considered as a form of pollution. This may be controlled or regulated under this

provision, Madam President.103

Interestingly, it would seem that the framers intended that by enshrining the right to a balanced

and healthful ecology, the government would be saddled with the responsibility of protecting the

right by regulating the use of resources and sanctioning violations. Fortunately, the Court did not

construe the provision to also preclude actions against government agents. It would indeed be

foolish to believe that damage to the environment cannot be initiated by the government, or that

the fundamental law of the land was designed to protect government agents from legal reprisals

for destroying the environment. If the right can be enforced against any private person, there is

no reason why such a right is not also enforceable against the government.

2. Statutes and Case Law

Concern for the environmental rights of "future generations" is not new under Philippine law -

many laws, some of which were passed prior to the ratification of the 1987 Constitution,

recognize this right.104 The laws need not be discussed separately here, but they do illustrate

one thing: it is not a pronouncement of intergenerational equity - whether by the executive,

legislative, or judicial branch - that compels people to preserve the environment for future

generations. Both the constitutional and statutory mandates to protect the rights of future

generations need to be enforced. Oposa, therefore, merely adds judicial imprimatur to what is

already increasingly commonplace in Philippine legislation.

Nor is Oposa the first time that the Supreme Court stressed the importance of Article II, Section

16 of the Constitution. The Supreme Court linked the provision with the interests of future

generations in Ysmael, Jr. & Co., Inc. v. Deputy Executive Secretary:

While there is a desire to harness natural resources to amass profit and to meet the country's

immediate financial requirements, the more essential need to ensure future generations of

Filipinos of their survival in a viable environment demands effective and circumspect action

from the government to check further denudation of whatever remains of the forest lands.

Nothing less is expected of the government in view of the clear constitutional command to

maintain a balanced and healthful ecology.105

Thus, three years before Oposa was decided, the Supreme Court already had interpreted the

constitutional provision on the right to a balanced and healthful ecology to be a constitutional

command for government to check the denudation of forestlands.

In the meantime, Oposa remains largely ignored. In the last decade, Oposa was cited with

significance only once. In Tano v. Socrates, the Supreme Court upheld the power of the local

government units to enact laws to protect the environment pursuant to the general welfare clause

of the Local Government Code of 1991 (LGC).106 The Court pointed out that the LGC seeks "to

give flesh and blood to the right of the people to a balanced and healthful ecology."107

Moreover, the general welfare provisions of the LGC "shall be liberally interpreted to give more

powers to the local government units in accelerating economic development and upgrading the

quality of life for the people of the community."108 Oposa was not even necessary in that case,

because there were sufficient legal bases for the challenged ordinances under the LGC. The

Court mentioned Oposa only to point out that there is a state policy on the protection of the

environment.

Tano is even more significant than Oposa because it gives local governments a concrete avenue

for the protection of the environment. Furthermore, advocates of environmental protection may

lobby their local governments for such ordinances. In either case, the outcome is clear. The same

cannot be said of Oposa.

F. THE POTENTIAL USES OF OPOSA

I am not, of course, in any way suggesting that we disregard the environmental rights of future

generations. The present generation could deplete resources, often with irreversible

consequences - by depleting higher quality resources, leading to higher real prices of resources

for future generations; by consuming potentially valuable resources; and by exhausting

resources, resulting in the narrowing of the range of available natural resources.109 Philippine

law already protects against these outcomes by mandating protection of the rights of future

generations, and Oposa adds nothing to the constitutional and legislative mandates. What then

does Oposa contribute to environmental protection?

There is reason enough to celebrate Oposa. Unfortunately, environmental rights advocates have

focused their attention on the decision's colorful dictum and have altogether ignored the

pronouncements that make it a genuine landmark decision. The decision is important because

Article II, Section 16 of the Constitution is no longer merely a policy declaration, but an

actionable right; it no longer requires enabling legislation to be invoked by an aggrieved party.

Of course, Oposa fails to clarify if this right may be invoked immediately, or whether a petitioner

must first exhaust all administrative remedies available. Nevertheless, environmental rights

advocates should be exploring this opening, rather than dwelling on a non-binding judicial

declaration on standing to sue for future generations.

Oposa breaks new ground insofar as it holds that the constitutional provision on the right to a

balanced environment is an actionable right, even absent any further legislation. The importance

of Oposa, thus, is not so much its pronouncement on standing. Rather, as one author pointed out,

Oposa is a statement to the effect that:

the right to a sound environment is a self-executory constitutional policy. By itself, independent

of specific statutory rights, this right is actionable. And it is actionable against the DENR

Secretary who is tasked with carrying out the State's constitutional mandate to control and

supervise the exploration, development, utilization, and conservation of the country's natural

resources.110

This statement is groundbreaking in that constitutional authorities in the Philippines have always

believed otherwise. The Principles and State Policies of the Constitution are the political creed of

the nation, which sets out the fundamental obligations of the government. "It is incumbent upon

the people to demand fulfillment of these governmental duties through the exercise of the right

of suffrage."111 These principles may aid the courts in their determination of the validity of

statutes or executive acts in justiciable cases,112 but Joaquin Bernas maintains that they were not

intended to be self-executing principles ready for enforcement through the courts. They are,

rather, directives addressed to the executive and to the legislative branches of the government. If

there was a failure on their part to heed the directives, the people's remedy would be political and

not judicial.113 State Policies and Principles under Article II of the Constitution and the separate

Social Justice and Human Rights provisions under Article XIII of the Constitution are mere

policy declarations and generally require enabling legislation before they can be invoked in

courts.114

The task at hand now seems to be to test the potential of this decision. Oposa need not be

confined to forest protection. It may be invoked to prevent other forms of environmental

degradation. Mining activities,115 the change of land use to industrial or commercial

purposes,116 quarrying operations,117 and the emission of toxic medical wastes118 are only

some of the environmental problems facing the country today.

Oposa also might be used to address the forced displacement of communities caused by

infrastructure and development projects. Small landowners have been literally bulldozed out of

their lands to make way for export processing zones.119 Thousands of families are under the

threat of displacement because of the construction of government projects such as

commercial120 and sports complexes,121 cement plants,122 dams,123 geothermal plants,124

mining operations,125 and the commercial development of land.126 All these activities

necessarily threaten the environment. May Oposa be used to stop any of these activities? May a

citizen, invoking the constitutional right to a balanced and healthful ecology, ask the courts to

stop the issuance of all Financial and Technical Assistance Agreements (FTAAs) under the

Mining Act of 1995? May a citizen challenge all land use conversions as a violation of this right?

Again, such relief might run against the constitutional provisions on the exploitation of natural

resources. It is highly unlikely that the courts will sanction suits that seek blanket prohibitions

against the issuance of natural resources access instruments such as TLAs or FTAAs. The courts

may, instead, find it necessary to fashion a standard under which the challenged action may be

declared unconstitutional.

Oposa might be potent for another reason. In 2000, Congress enacted Republic Act No. 8975 to

"ensure the expeditious and efficient implementation and completion of government

infrastructure projects to avoid unnecessary increase in construction, maintenance and/or repair

costs and to immediately enjoy the social and economic benefits therefrom."127 While

seemingly noble in its objectives, the law may become an agent of environmental degradation

because it bars courts from temporarily stopping these projects pending litigation. The law

provides:

SECTION 3. Prohibition on the Issuance of Temporary Restraining Orders, Preliminary

Injunctions and Preliminary Mandatory Injunctions. - No court, except the Supreme Court, shall

issue any temporary restraining order, preliminary injunction or preliminary mandatory

injunction against the government, or any of its subdivisions, officials or any person or entity,

whether public or private, acting under the government's direction, to restrain, prohibit or compel

the following acts:

(a) Acquisition, clearance and development of the right-of-way and/or site or location of any

national government project;

(b) Bidding or awarding of contract/project of the national government as defined under Section

2 hereof;

(c) Commencement, prosecution, execution, implementation, operation of any such contract or

project;

(d) Termination or rescission of any such contract/project; and

(e) The undertaking or authorization of any other lawful activity necessary for such

contract/project.

This prohibition shall apply in all cases, disputes or controversies instituted by a private party,

including but not limited to cases filed by bidders or those claiming to have rights through such

bidders involving such contract/project. This prohibition shall not apply when the matter is of

extreme urgency involving a constitutional issue, such that unless a temporary restraining order

is issued, grave injustice and irreparable injury will arise. The applicant shall file a bond, in an

amount to be fixed by the court, which bond shall accrue in favor of the government if the court

should finally decide that the applicant was not entitled to the relief sought.

If after due hearing the court finds that the award of the contract is null and void, the court may,

if appropriate under the circumstances, award the contract to the qualified and winning bidder or

order a rebidding of the same, without prejudice to any liability that the guilty party may incur

under existing laws.128

This law could pose a problem for environmental protection advocates because courts are

enjoined from temporarily halting government projects that could be impairing the environment.

Because Oposa established the right to environment as a constitutional right that may be

immediately invoked, it could be argued that environmental protection falls under the exemption

of the law - "extreme urgency involving a constitutional issue, such that unless a temporary

restraining order is issued, grave injustice and irreparable injury will arise."129 Proponents of

environmental protection may invoke Oposa as falling within the exemption of Republic Act No.

8975.

IV. CONCLUSION

In this Article, I have hoped to explain why Oposa excites environmental advocates everywhere

except in the Philippines. The answer is simple: we have misunderstood what the Philippine

Supreme Court actually said in the case. Even in the Philippines, Oposa did not inspire litigation

to protect the environment and the Supreme Court's environmental docket remains sparse.130 No

one in the Philippines would say that the environment has improved in the last ten years, despite

the enactment of a spate of new environment-related laws.131

To summarize, no TLA has ever been cancelled pursuant to the Court's ruling in Oposa and the

DENR may issue TLAs so long as there are forests to fell. At the last count, 1.3 million hectares

of Philippine forestland are still covered by these instruments.

The Court's spectacular pronouncement that the children had standing to sue even on behalf of

those generations not yet born is merely dictum. In fact, the Court could have assumed the

existence of standing, because the petitioners were seeking the enforcement of a public right and

the performance of a public duty. The Court could also have waived the issue of standing

entirely because of the magnitude of the issues that were raised. Worse, the pronouncement on

standing to sue for future generations is useless, because the same results could have been

achieved had the petitioners filed the case to protect only their own right to a balanced and

healthful ecology. Moreover, the protection of the rights of future generations is already

mandated by the Constitution and several Philippine laws. The Philippine Supreme Court did not

craft anything new but merely reiterated the directives of the Constitution and Congress.

Yet Oposa should be celebrated for another reason: the Court's ruling that the constitutional right

to a balanced and healthful environment is a specific, self-executory, and actionable right,

superior to the Bill of Rights. This part of the case has been overlooked and should be exploited

by environmental protection advocates to further their cause. Indeed, without any concrete

results from Oposa, the case has been reduced to what the counsel for petitioners was hoping to

avoid: another "rhetorical call for responsibility to future generations for the world's natural

resources."132

1. Oposa v. Factoran, 224 SCRA 792 (1993); reprinted in 33 I.L.M. 173 (1994).

2. Id. at 802.

3. Ben Boer, The Rise of Environmental Law in the Asian Region, 32 U. RICH. L. REV. 1503, 1534-37 (1999).

4. Neil A.F. Popovic, In Pursuit of Environmental Human Rights: Commentary on the Draft Declaration of Principles on Human Rights and the

Environment, 27 COLUM. HUM. RTS. L. REV. 487, 513 (1996). Oposa was also referred to as a seminal decision that implements the Rio

Declaration on Environment and Development's components on a right to a healthy and decent environment, and intergenerational equity and

responsibility. See Alfred Rest, Preliminary Efforts in Implementing the Rio Targets, 55 ATENEO L.J. 1, 10-11 (1996).

5. See, e.g., Sumudu Atapattu, Sustainable Development, Myth or Reality?: A Survey of Sustainable Development Under International Law and

Sri Lankan Law, 14 GEO. INT'L ENVTL. L. REV. 265, 293 n.98 (2001); Dr. Ibibia Lucky Worika, Deprivation, Despoliation and Destitution:

Whither Environment and Human Rights in Nigeria's Niger Delta?, 8 ILSA J. INT'L & COMP. L. 1, 21 (2001); Peggy Rodgers Kalas,

International Environmental Dispute Resolution and the Need for Access by Non-State Entities, 12 COLO. J. INT'L ENVTL. L. & POL'Y 191,

206 n.55; Janelle P. Eurick, The Constitutional Right to a Healthy Environment: Enforcing Environmental Protection through State and Federal

Constitutions, 11 INT'L LEGAL PERSP. 185, 200 (2001); Carl Bruch, WoIe Coker & Chris VanArsdale, Constitutional Environmental Law:

Giving Force to Fundamental Principles In Africa, 26 COLUM. J. ENVTL. L. 131, 148 (2001); Edith Brown Weiss, The Rise or the Fall of

International Law?, 69 FORDHAM L. REV. 345, 370 n.94 (2000); John Lee, The Underlying Legal Theory to Support a Well-Defined Human

Right to a Healthy Environment as a Principle of Customary International Law, 25 COLUM. J. ENVTL. L. 283, 317-18 (2000); Malgosia

Fitzmaurice, The Right of the Child to a Clean Environment, 23 S. ILL. U. L.J. 611, 618 (1999); Jeffrey M. Gaba, Environmental Ethics and our

Moral Relationship to Future Generations: Future Rights and Present Virtue, 24 COLUM. J. EVENTL. L. 249, 263 n.37 (1999); Bruce Ledewitz,

Establishing a Federal Constitutional Right to a Healthy Environment in US and in Our Posterity, 68 MISS. L.J. 565, 604-05 (1998); John C.

Dernbach, Sustainable Development as a Framework for National Governance, 49 CASE W. RES. L. REV. 1, 66 n.332 (1998); Nicholas A.

Robinson, Comparative Environmental Law Perspectives on Legal Regimes for Sustainable Development, 3 WIDENER L. SYMP. J. 247, 261

n.56 (1998); J. Martin Wagner & Neil A.F. Popovic, Environmental Injustice on United States Bases in Panama: International Law and the Right

to Land Free From Contamination and Explosives, 38 VA. J. INT'L L. 401, 493 (1998); Prudence E. Taylor, From Environmental to Ecological

Human Rights: A New Dynamic in International Law?, 10 GEO. INT'L ENVTL. L. REV. 309, 353 n. 174 (1998); Paul A. Barresi, Beyond

Fairness to Future Generations: An lntragenerational Alternative To Intergenerational Equity in the International Environmental Arena, 11 TUL.

EVENTL. L.J. 59, 82 (1997); Hari M. Osofsky, Environmental Human Rights Under the Alien Tort Statute: Redress for Indigenous Victims of

Multinational Corporations, 20 SUFFOLK TRANSNAT'L L. REV. 335, 376 (1997); Ellen Hey, The World Bank Inspection Panel: Towards the

Recognition of a New Legally Relevant Relationship in International Law, 2 HOFSTRA L. & POL'Y symp. 61, 61 n.2 (1997); Neil A.F.

Popovic, Pursuing Environmental Justice with International Human Rights and State Constitutions, 15 STAN. ENVTL. L.J. 338, 340 n.4 (1996);

Christopher D. Stone, Locale and Legitimacy in International Environmental LAW, 48 STAN. L. REV. 1279, 1281 n.12 (1996); Mark Allan

Gray, The International Crime of Ecocide, 26 CAL. W. INT'L L.J. 215, 240 (1996); and James C. Wood, Intergenerational Equity and Climate

Change, 8 GEO. INT'L ENVTL. L. REV. 293, 324 (1996).

6. For a rare critical look at the case, see Vaughan Lowe, Sustainable Development and Unsustainable Arguments, in INTERNATIONAL LAW

AND SUSTAINABLE DEVELOPMENT 19, 27-28 (Alan Boyle & David Freestone eds., 1999).

7. Antonio A. Oposa, Jr., The Power to Protect the Environment, athttp://www.oposa.com/oposa_family/environment2.htm (Aug. 30, 1997)

(excerpts of a paper presented before the LAWASIA Conference in Manila).

8. See Ted Allen, Note, The Philippine Children's Case: Recognizing Legal Standing for Future Generations, 6 GEO. INT'L ENVTL. L. REV.

713 (1994); see also Matthew Tuchband, The Systemic Environmental Externalities of Free Trade: A Call for Wiser Trade Decisionmaking, 83

GEO. L.J. 2099, 2106 n.34 (1995); J. William Futrell, Efforts to Improve Environmental Programs: NGOs, C990 A.L.I.-A.B.A. 299, 331-32

(1995); Jeffrey L. Dunoff, From Green to Global: Toward the Transformation of International Environmental Law, 19 HARV. ENVTL. L. REV.

241, 291 n.196 (1995).

9. See Richard Desgangne, Integrating Environmental Values into the European Convention on Human Rights, 89 AM. J. INT'L L. 263, 263, n.7

(1995); David A. Wirth, The Rio Declaration on Environment and Development: Two Steps Forward and One Back, or Vice Versa?, 29 GA. L.

REV. 599, 652, n.51 (1995).

10. Oposa v. Factoran, 224 SCRA 792, 796 (1993).

11. Pres. Decree No. 705 (1975), [sec] 3(ee) defines a timber license agreement thus:

License agreement is a privilege granted by the State to a person to utilize forest resources within any forest land with the right of possession and

occupation thereof to the exclusion of others, except the government, but with the corresponding obligation to develop, protect and rehabilitate

the same in accordance with the terms and conditions set forth in said agreement.

12. Oposa, 224 SCRA at 797.

13. Id. at 803-04.

14. PHIL. CONST. art. III, [sec] 10 (1987).

15. Oposa, 224 SCRA at 800-01.

16. Id. at 802.

17. Id.

18. Phil. R. Civ. P. 3, [sec] 12 (1997). The Court said that:

The subject matter of the complaint is of common and general interest not just to several, but to all citizens of the Philippines. Consequently,

since the parties are so numerous, it becomes impracticable, if not totally impossible, to bring all of them before the court. We likewise declare

that the plaintiffs therein are numerous and representative enough to ensure the full protection of all concerned interests.

Oposa, 224 SCRA at 802.

19. Oposa, 224 SCRA at 802.

20. Id. at 802-03.

21. Id. at 803.

22. PHIL. CONST. art. II, [sec] 16 (1987).

23. Oposa, 224 SCRA at 804-05.

24. Id. at 805.

25. Section 3 of the Executive Order in part provides:

Sec. 3. Declaration of Policy.-It is hereby declared the policy of the State to ensure the sustainable use, development, management, renewal and

conservation of the country's forest, mineral, land, off-shore areas and other natural resources, including the protection and enhancement of the

quality of the environment, and equitable access of the different segments of the population to the development and use of the country's natural

resources, not only for the present generation but for future generations as well . . . .

Exec. Order No. 192, s. 1987, [sec] 3.

26. See Exec. Order No. 292, s. 1987, [sec] 3.

27. Oposa, 224 SCRA at 807.

28. Pres. Decree No. 1151 (1977).

29. Pres. Decree No. 1152 (1977).

30. Oposa, 224 SCRA at 807.

31. Citing jurisprudence, the Supreme Court defined a cause of action as "an act or omission of one party in violation of the legal right or rights of

the other; and its essential elements are legal right of the plaintiff, correlative obligation of the defendant, and act or omission of the defendant in

violation of said legal right." Oposa, 224 SCRA at 808.

32. Id. at 809.

33. Id. (quoting PHIL. CONST. art. VIII, [sec] 1 (1987)).

34. Id. at 810.

35. Id. at 812; PHIL. CONST. art. III, [sec] 10 (1987) (providing that "[n]o law impairing the obligation of contracts shall be passed").

36. Oposa, 224 SCRA at 812.

37. Id. at 812-13.

38. Oposa, 224 SCRA at 814.

39. The majority consisted of Associate Justices Cruz, Padilla, Bidin, Grino-Aquino, Regalado, Romero, Nocon, Bellosillo, Melo, and Quiason.

40. Those justices taking no part in this case were Chief Justice Narvasa and Associate Justices Puno and Vitug.

41. Oposa, 224 SCRA at 814 (Feliciano J., concurring).

42. Id.

43. Id. at 815.

44. Id.

45. Id.

46. Id. (emphasis in original).

47. Id. at 817.

48. Id. at 818.

49. Id.

50. Id. at 814.

51. Id. at 815.

52. Id. at 818.

53. Id. at 814.

54. Status Report of Timber License Agreements (TLAs) as of December 31, 2001, Forest Management Bureau, Phil. Dept. of Environment and

Natural Resources 33-34 (2001).

55. The state of the Philippine environment cannot be adequately discussed here, but for an overview of the problems, see Danilo C. Israel, The

Quest for a Better Environment: Past Experiences and Future Challenges, at 2 (Phil. Inst. for Dev. Stud., Discussion Paper Series No. 2002-14

(Nov. 2002)).

56. There were 75 TLAs still in force in 1990. See Therese Desiree Perez, Philippine Forests: A Case of Disappearance, 3 PHIL. NAT. RES. L.J.

18, 23 (1990). One can only imagine the amount of evidence that must be adduced against each TLA holder. As of June 1996, 34 TLAs covering

1,515,033 hectares remain in effect. See ENVTL. MGMT.M BUREAU, PHIL. ENVTL. QUALITY REP., 1990-1995 at 321 (1996).

57. Marites Danguilan Vitug, Forest Policy and National Policy, in FOREST POLICY AND POLITICS IN THE PHILIPPINES: THE

DYNAMICS OF PARTICIPATORY CONSERVATION 11, 16 (Peter Utting ed., 2000).

58. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83 (1998); see also Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).

59. Phil. Ass'n. of Service Exps., Inc. v. Torres, G.R. No. 98472, Aug. 19, 1993 (citing Ass'n. of Small Landowners in the Phil., Inc. v. Sec'y of

Agrarian Reforms, G.R. No. 78742 and companion cases, July 14, 1989; 175 SCRA 343, 364).

60. Kilusang Mayo Uno Labor Ctr. v. Garcia, Jr., G.R. No. 115381, Dec. 2, 1994.

61. Phil. R. Civ. P. 3, [sec] 2 (1997).

62. Id. at 2, [sec] 2 (1997).

63. Rava Dev. Corp. v. Ct. App., G.R. No. 96825, 211 SCRA 144, 153 (1992); Heirs of Ildefonso Cosolluela, Sr., Inc. v. Rico Gen. Ins. Corp,

G.R. No. 84628, 179 SCRA 511, 517 (1989).

64. See Oposa v. Factoran, 224 SCRA 792, 796 (1993) (emphasis added).

65. Id. at 802.

66. Id. at 803.

67. Id. at 808.

68. Id.

69. Gan Hock v. Ct. App., G.R. No. L-60848, May 20, 1991, 197 SCRA 223, 230 (1991). See also Sustiguer v. Tamayo, G.R. No. 29341, 176

SCRA 579, 587 (1989).

70. G.R. No. L-59068, 120 SCRA 337, 340 (1983).

71. Id. at 341-42.

72. See Rep. Act No. 386 (1949), art. 40.

73. Delta Motors Corp. v. Ct. App., G.R. No. 121075, July 24, 1997.

74. City of Manila v. Entote, G.R. No. L-24776, June 28, 1974.

75. Equatorial Realty Dev., Inc. v. Mayfair Theater, Inc., G.R. No. 16063, Nov. 21, 1996, citing Black's Law Dictionary, 6th edition, 1990; see

also Morales v. Paredes, 55 Phil. 565 (1930); Reagan v. Comm'r of Internal Revenue, G.R. No. L-26379, Dec. 27, 1969; Am. Home Assurance

Co. v. Nat'l Labor Relations Comm'n, G.R. No. 120043, July 24, 1996.

76. Lee v. Ct. App. and De Simeon, G.R. No. L-28126, Nov. 28, 1975.

77. Curiously, even members of the Supreme Court suggest that Oposa did in fact rule on the children's standing to sue. See Flerida Ruth P.

Romero, The Role of the Judiciary in Promoting the Rule of Law in the Area of Environmental Protection, in THE COURT SYSTEMS J. 94, 96

(Special Edition, Apr. 1999) (Justice Romero said, "we recognized the concept of intergenerational responsibility by ruling that petitioner

children can file a class suit for themselves, for others of their generation, and for succeeding generations, to preserve the country's rainforests.").

Chief Justice Hilario Davide himself recently said:

In fact, in a frequently cited case, Oposa et al. vs. Secretary Factoran, (G.R. No. 101083, 30 July 1993) I even sustained the standing of minors to

bring suit, not only in their behalf, but also in behalf of generations yet unborn, to shield the country's dwindling natural resources from farther

degradation. I believe it is far more preferable to allow an issue of urgency of transcendental importance to be argued before and passed upon by

the courts than to leave aggrieved parties with the feeling of helplessness born out of a strict and unrelenting application of traditional, if not

outmoded, concepts of standing and personality.

Hilario G. Davide, Jr., The Judicial Response To Terrorism: National Venues, Speech delivered at the 10th International Judicial Conference in

Strasbourg, May 23-24, 2002, at http://www.coe.int/t/e/communication_ and_research/press/events/5.-ministerial_conferences/2002/2002-

05_international_judicial_conference__strasbourg/panel 1_hilariogdavidejr.asp. These remarks notwithstanding, the fact remains that "standing"

was not an issue in Oposa no matter how many times one reads the case.

78. Oposa v. Factoran, 224 SCRA 792, 808 (1993).

79. Garcia v. Bd. of Inv., G.R. No. 88637, 177 SCRA 374, 383-84 (1989).

80. G.R. No. 63915, 136 SCRA 27 (1985).

81. Id. at 37.

82. Legaspi v. Civil Serv. Comm'n, G.R. No. 72119, May 29, 1987, 150 SCRA 530, 536 (1987).

83. Kilosbayan Inc. v. Guingona, Jr., 232 SCRA 110, 134 (1994).

84. Id. citing Avelino v. Cuenco, G.R. No. L-2821, Mar. 4, 1949.

85. Id. citing Tan v. Macapagal, 43 SCRA 677, 680 (1972).

86. See PHILCONSA v. Gimenez, 15 SCRA 479 (1965); Civil Liberties Union v. Executive Sec'y, 194 SCRA 3I7 (1991); Guingona v. Carague,

196 SCRA 221 (1991); Osmena v. COMELEC, G.R. No. 100308, July 30, 1991, 199 SCRA 750 (1991); Carpio v. Executive Sec'y, 206 SCRA

290 (1992); Iloilo Palay and Corn Planters Ass'n, Inc. v. Feliciano, 13 SCRA 377 (1965); Sanidad v. COMELEC, 73 SCRA 333 (1976); Laurel v.

Garcia, G.R. No. 92013, July 25, 1990, 187 SCRA 797 (1990); Garcia v. Bd. of Inv., 177 SCRA 374 (1989) and 191 SCRA 288(1990); Maceda

v. Macaraig, 197 SCRA 771 (1991); Garcia v. Executive Sec'y, 211 SCRA 219 (1992); De Guia v. COMELEC, 208 SCRA 420 (1992); Pasay

Law and Consciousness Union, Inc. v. Cuneta, 101 SCRA 662 (1980).

87. 163 SCRA 371, 378 (1988); see also Basco v. Phil. Amusements and Gaming Corp., 197 SCRA 52, 60 (1991).

88. G.R. Nos. 78742, 79310, 79744, 79777, 175 SCRA 343 (1989).

89. Citing Araneta v. Dinglasan, G.R. No. L-2044, Aug. 26, 1949; Araneta v. Angeles, G.R. No. L-2756; Rodriguez v. Tesorero de Filipinas,

G.R. No. L-3054; Guerrero v. Comm'r of Customs, G.R. No. L-3055; Baredo v. Comm'n on Elections, G.R. No. L-3056, 84 Phil. 968 (1949).

90. Kilosbayan v. Guingona, Jr., 232 SCRA 110, 137(1994).

91. BAYAN v. Executive Sec'y, 342 SCRA 449, 481 (2001).

92. Integrated Bar of the Phil. v. Zamora, 338 SCRA 81, 101 (2001).

93. Oposa v. Factoran, 224 SCRA 792, 805 (1993).

94. Araneta v. Dinglasan, 84 Phil. 368 (1949).

95. Kilosbayan, Inc. v. Teofisto Guingona Jr., G.R. No. 113375, May 5, 1994.

96. Kilusang Mayo Uno Labor Center v. Garcia, Jr., G.R. No. 115381, Dec. 23, 1994.

97. Proposed Res. No. 537, RESOLUTION TO INCORPORATE IN THE NEW CONSTITUTION AN ARTICLE ON THE DECLARATION

OF PRINCIPLES, 4 RECORD OF THE CONSTITUTIONAL COMMISSION [hereinafter RECORD] 579 (1986).

98. 4 RECORD 915-16. All emphases in the records of the Constitutional Commission are in the original.

99. 4 RECORD 907.

100. 4 RECORD 914.

101. 4 record 914. Commissioner Padilla opined that the provision did not serve any purpose:

MR. PADILLA. If we were writing a poem, that phrase "rhythm and harmony" may have some place, but not in a Constitution, and much less in

the Declaration of Principles. Madam President, in fact, this section 17 is within the inherent power of the State under its police power. In fact,

the Civil Code has provisions on nuisances under Article 6, line 4, which provides that a nuisance is any act, commission, establishment,

business, condition or property or anything else which: (1) injures or endangers the health or safety of others; (2) annoys or offends the senses;

(3) shocks, defies or disregards decency or morality; (4) obstructs or interferes with the free passage of any public highway or street or any body

of water; and (5) hinders or impairs the use of property . . . .

So if we must be prevailed upon to include a provision in the Declaration of Principles, to which 1 do not exactly concur, let us make it simple,

similar to what was suggested by Commissioner Suarez. Or if we want to preserve some of the wordings of the Committee report, let us just

simply say: "THE STATE RECOGNIZES THE HUMAN RIGHT TO HEALTHFUL ENVIRONMENT AND TO ECOLOGICAL BALANCE

OF NATURE" or adopt what Commissioner Suarez suggested because it is not necessary to say "FOR THIS AND FUTURE GENERATIONS"

or "FOR NOW AND POSTERITY." It is understood that whatever we do here is intended for the general welfare of all the peoples now and

tomorrow . . . .

And so, I am against the new formulation, especially when it mentions "THE SINGULAR DEMAND OF NATURE FOR RHYTHM AND

HARMONY." These may be beautiful words, but they have no substantial meaning.

102. 4 RECORD 914.

103. 4 RECORD 913 (emphasis added).

104. See Rep. Act No. 826 (1952); Pres. Decree No. 330 (1972); Pres. Decree No. 389 (1974); Pres. Decree No. 705 (1975); Pres. Decree No.

1151 (1977); Pres. Decree No. 1152 (1977); Pres. Decree No. 1160 (1977); Pres. Decree No. 1305 (1978); Pres. Decree No. 1559 (1978); Exec.

Order No. 192 (1987); Exec. Order No. 277 (1987); Exec. Order No. 292 (1987); Rep. Act No. 7394 (1992); Rep. Act No. 7586 (1992); Rep. Act

No. 7611 (1992).

105. Ysmael, Jr. & Co., Inc. v. Deputy Executive Sec'y, G.R. No. 79538, Oct. 18, 1990.

106. See Tano v. Socrates, 278 SCRA 154 (1997).

107. Rep. Act No. 7160, [sec] 16 (1991).

108. Rep. Act No. 7160, [sec] 5(c) (1991).

109. Bradford C. Mank, Protecting the Environment for Future Generations: A Proposal for a "Republican" Superagency, 5 N.Y.U. ENVTL. L.J.

444, 450-51 (1996).

110. Antonio G.M. La Vina, The Right to a Balanced and Healthful Ecology: The Odyssey of a Constitutional Policy, 6 PHIL. NAT. RES. L.J. 3,

10 (1994).

111. VICENTE SINCO, PHILIPPINE POLITICAL LAW: PRINCIPLES AND CONCEPTS, 118-19 (1962).

112. Id.

113. 2 JOAQUIN BERNAS, THE CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES: A COMMENTARY 2 (1988).

114. See Basco v. Philippine Amusements and Gaming Corp., G.R. No. 91649, May 14, 1991, 197 SCRA 52, 68 (art. XIII, [sec] 13, among

others, "are merely statement of principles and policies. As such they are basically not self-executing, meaning a law should be passed by

Congress to clearly define and effectuate such principles."); Tolentino v. Sec'y of Fin., G.R. No. 115455, Aug. 25, 1994, 235 SCRA 630,685, (art.

XIII, [sec] 1, among others, "are put in the Constitution as moral incentives to legislation, not as judicially enforceable rights."). The one

exception seems to be section 3 of Article XITI, which the Court cites to support employees' right to security of tenure. See Lopez v. Javier, G.R.

No. 102874, Jan. 22, 1996, 252 SCRA 68, 76. The fact that Article XIII lays down principles and policies does not diminish its importance. As

the Supreme Court explained in Aris (Phil.) Inc. v. Nat'l Labor Relations Comm'n, G.R. No. 90501, Aug. 5, 1991, Article XIII establishes the

strong foundations of a truly just and humane society. This Article addresses itself to specified areas of concern - labor, agrarian and natural

resources reform, urban land reform and housing, health, working women, and people's organizations and reaches out to the underprivileged

sector of society, for which reason the President of the Constitutional Commission of 1986, former Associate Justice of this Court Cecilia Munoz-

Palma, aptly describes this Article as the "heart of the new Charter."

115. See Chay Florentino-Hofilena, Searching for Gold in B'laan Country, in patrimony: 6 CASE STUDIES ON LOCAL POLITICS AND THE

ENVIRONMENT IN THE PHILIPPINES 98 (Shiela S. Coronel, ed., 1996).

116. See Carlito Pablo & Cathy Caflares, Farmers Protest Expulsion from Ejercito Land, PHIL. DAILY INQUIRER, Sept. 15, 1998.

117. See Carlito Pablo, Gov't Asks Quarry Firms to Shut Down, PHIL. DAILY INQUIRER, Sept. 15, 1998. See also Babes Montana, Turning

Mountains into Deserts, PHIL, J., Sept. 25, 1998; Babes Montana, Disaster Looms at Quarry Site, PHIL. J., Sept. 26, 1998.

118. See Joel San Juan, MMDA to Inspect Again 40 Hospitals on Waste Disposal, TODAY, Sept. 23, 1998.

119. See Shiela S. Coronel, The Killing Fields of Commerce, in BOSS: 5 CASE STUDIES OF LOCAL POLITICS IN THE PHILIPPINES 3

(Jose F. Lacaba, ed., 19