Sounding Board
‘A balanced and healthful ecology’
By Fr. Joaquin G. Bernas, S.J.
Philippine Daily Inquirer
First Posted 02:18:00 02/02/2009
Filed Under: Constitution, Laws
A PROVISION in the 1987 Constitution,
which once some saw as unnecessary, has been
gradually gaining attention. Section 16 of Article
II says: “The State shall protect and advance
the right of the people to a balanced and
healthful ecology in accord with the rhythm
and harmony of nature.” In tandem with it is
Section 15, which says: “The State shall protect
and promote the right to health of the
people and instill health consciousness
among them.”
Section 16 is unusual among those found
in Article II in that, whereas almost all the other
provisions in the Article are not self-executing but
need implementing legislation to make them
effective, Section 16 has been recognized by
the Supreme Court as self-executing like
the provisions in the Bill of Rights. As early
as 1993 the Supreme Court already recognized it,
in conjunction with the right to health, as
anchoring the right of a group of minors to
challenge logging practices in the country. The
minors, speaking for themselves and for
“generations yet unborn” under the concept of
“inter-generational justice”, asked the Court
to order a stop to the harmful effects flowing from
deforestation. The Court upheld their right to
raise the challenge as flowing from their “right to
a balanced and healthful ecology” and “the
correlative duty to refrain from impairing
the environment.”
Not long after that the Court upheld the
right of the Laguna Lake Development Authority
to be responsible for the ecological protection of
Laguna Lake against the claimed authority of the
local governments around the lake. The Supreme
Court linked Section 16 with the Universal
Declaration of Human Rights and the Alma
Conference Declaration of 1978.
Along a similar vein, in 2007 the Supreme
Court upheld the validity of an ordinance of the
City of Manila requiring the oil companies to close
and transfer the Pandacan Terminals to another
location within a specified period.
The latest on this subject came out only
last December. In Metropolitan Manila
Development Authority v. Residents of Manila
Bay, the Supreme Court ordered various agencies
of government to clean up Manila Bay.
All these have come about because of the
desire of the state as enunciated in the
Constitution to ensure for the people a healthy
environment. This constitutional policy, even
if already self-executing, has been injected
with an element of urgency through various
laws.
The latest development on the subject is
an ordinance promulgated by the City of Davao
ordering a stop to aerial spraying of fungicides in
the plantations of Davao. I wrote about this last
week saying that this is unfinished business. The
ordinance was brought to court and one of the
issues was whether conclusive evidence existed
to prove that aerial spraying was the cause of
ailments reported as affecting some people in the
area. The Court of Appeals found no conclusive
evidence and saw this as one of the reasons why
the ordinance should be invalidated. (Another
reason was the alleged impossibility and
enormous cost of switching to a different method
of speeding fungicides.)
About the issue of lack of evidence, Fr. Jett
Villarin, S.J., president of Xavier University in
Cagayan de Oro and a scientist whose area of
expertise is environmental matters, made some
interesting observations in a letter he sent me.
He says:
“Environmental laws and regulations must
abide by the precautionary principle. This
principle simply holds that uncertainty in the
science should not be an obstacle or excuse
to postpone mitigating action. It is a
conservative principle which in the case of
scientific uncertainty places the burden of
proof on the polluter, not on the affected,
i.e. the polluter has the responsibility to prove
that what is being spewed into the environment is
not harmful.”
The Court of Appeals had said that the
planters had failed to do this. Corollary, it is not
the responsibility of the affected to prove that the
effluent is poisonous. In view of scientific
uncertainty, the presumption is that the chemical
is harmful.
Aerial spraying is better deployed in
advanced countries where there is mechanized
agriculture and land buffers are maintained. In
the Philippines and other developing countries,
communities live close to the plants and the land
they till.
The degree of harm depends on the
lifetime, human exposure and concentration
levels of the chemical. These will depend on the
state of the atmosphere. Greater control of the
dispersion of chemicals is possible in stable
atmospheres. Tropical atmospheres are frequently
unstable and less predictable. You only need to
ask a fisherman who knows how locally
unpredictable amihan can be these days.
If I were a banana plant manager, I would
seriously weigh the marginal cost of mitigating
the impact of aerial spraying or the total cost of
adopting another technology alongside the
externality costs of possible medical,
rehabilitation, and legal class action in the future.
If three months are not enough to change
systems, I would negotiate for a protracted
withdrawal schedule. Time, like air, can dilute
costs.
If I were a banana farmer, I would try to
convince my amo that people are better than
planes. People can say thank you. Planes can only
fly.
As a priest, I hope that our judges and our
agriculturists see that heaven might be an aerial
place and that God’s bottom line might be
different from theirs.
Of course, the last two paragraphs are
neither science nor law. But they can be of
greater significance than either science or law, or
bananas.

SC rules Northrail contractor not immune
from suit
By Ina Reformina, ABS-CBN News
Posted at 03/08/2012 12:55 PM | Updated as of
03/08/2012 4:37 PM
MANILA, Philippines - The Supreme Court
(SC) has given a Makati City trial court the green
light to proceed with the civil case against China's
China National Machinery & Equipment Corp.
Group (CNMEG) in connection with the multi-
million dollar Northrail project from Manila to San
Fernando, La Union.
In a unanimous Decision, the High Court
en banc held that the China-based contractor is
not immune from suit, and remanded the civil
case on the validity of CNMEG's contract
agreement with North Luzon Railways
Corporation (Northrail), as well as the counterpart
financial agreement (loan agreement) between
the Philippine government and the Export Import
Bank of China (EXIM) to Makati City Regional Trial
Court (RTC) Branch 145.
The High Court held that the
agreement between CNMEG and Northrail is
not an executive agreement; it was not
concluded between the government of the
Philippines and China but between Northrail
and CNMEG, which is neither a government
nor a government agency of China but a
corporation duly organized and created
under the laws of the People’s Republic of
China.
The 23-page Decision penned by
Associate Justice Ma. Lourdes Sereno denied
CNMEG’s petition assailing the dismissal by the
Court of Appeals (CA) of its petition for certiorari
assailing the RTC's denial of its motion to dismiss
the civil case.
“Since the Contract Agreement
explicitly provides that Philippine Law shall
be applicable, the parties have effectively
conceded that their rights and obligations
thereunder are not governed by
international law… It is therefore clear from
the foregoing reasons that the Contract
Agreement does not partake of the nature
of an executive agreement. It is merely an
ordinary commercial contract that can be
questioned before the local courts,” the
Decision read.
The High Court ruled that the Northrail
Project was a purely commercial transaction
based on the Memorandum of Understanding
(MOU) between CNMEG and Northrail, the Loan
Agreement, and the letter of Chinese Ambassador
to the Philippines Wang Chungui stating CNMEG
and not the Chinese government initiated the
Northrail Project.
The High Court said CNMEG was not
covered by sovereign immunity since it
engaged in a proprietary activity. The MOU
between CNMEG and Northrail shows that the
former sought the construction of the Luzon
Railways as a proprietary or commercial venture.
“Clearly, it was CNMEG that initiated the
undertaking, and not the Chinese government,”
the Decision read.
The High Court also held that an
agreement to submit any dispute between
the parties to arbitration may be construed
as an implicit waiver of immunity from suit.
Under the contract agreement, CNMEG and
Northrail are bound to submit any dispute to the
Hong Kong International Arbitration Centre
(HKIAK).
CNMEG entered into a MOU with Northrail
in Sept. 2002 for a feasibility study on a railway
line connecting Manila to San Fernando, La Union.
In August 2003, the EXIM Bank and the
Department of Finance (DOF) entered into a MOU,
wherein China agreed to extend Preferential
Buyer’s Credit to the Philippine government to
finance the Northrail Project. EXIM Bank was
designated as the lender by the Chinese
government Bank, while the Philippine
government named the DOF as the borrower.
Under the MOU, EXIM Bank agreed to
extend an amount not exceeding US $400 million
in favor of DOF, payable in 20 years, with a 5-
year grace period, and at the rate of 3% per
annum.
In October 2003, Chinese Ambassador
Wang wrote the DOF of CNMEG’s designation as
the Prime Contractor for the Northrail Project.
On December 30, 2003, Northrail and
CNMEG executed a Contract of Agreement for the
Construction of Section 1, Phase 1 of the North
Luzon Railway System from Caloocan to Malolos
on a turnkey basis. The contract price for the
Northrail Project was pegged at US $421 million.
On February 26, 2004, the Philippine
government and EXIM Bank entered into a
counterpart financial agreement where EXIM
Bank agreed to extend Preferential Buyer’s Credit
in the amount of US $400M in favor of the
Republic of the Philippines to finance the
construction of Phase I.
On February 13, 2006, several taxpayers
filed in the Makati RTC a complaint for annulment
of contract and injunction against CNMEG, the
Office of the Executive Secretary, the DOF, the
Department of Budget and Management (DBM),
the National Economic Development Authority
(NEDA), and Northrail.
The trial court set the case for hearing on
the issuance of injunctive reliefs. CNMEG
subsequently filed an Urgent Motion for
Reconsideration and before a ruling could be
made by the trial court, CNMEG filed a motion to
dismiss claiming that the RTC did not have
jurisdiction over it.
The RTC issued an omnibus order dated
May 15, 2007 denying CNMEG’s motion to
dismiss prompting CNMEG to elevate the case to
the appellate court.

Philippines: Archipelagic Doctrine
SPEECH OF ACTING SECRETARY OF FOREIGN
AFFAIRS EDSEL T. CUSTODIO ON THE OPENING OF
THE MOAC EXHIBIT ENTITLED “THE 50TH
ANNIVERSARY OF THE ARCHIPELAGIC DOCTRINE”
7 MARCH 2005, DFA LOBBY
Fifty years ago, on 7 March 1955, the
Philippine Permanent Mission to the United
Nations in New York city formally submitted to the
United Nations Secretary General, by note
verbale, the Philippine assertion that: “ All
waters around, between and connecting
different islands belonging to the Philippine
Archipelago, irrespective of their width or
dimension, are necessary appurtenances of
its land territory, forming an integral part of
the national or inland waters, subject to the
exclusive sovereignty of the Philippines.”
This was the very first formulation of the
key principle that would define the Philippines as
a mid-ocean archipelagic state. Indeed, the
principles contained in that note verbale would
serve to this day as the bases of Philippine laws
and policies and would even be later enshrined in
the 1973 and 1987 Philippine Constitution.
The archipelagic principle is a
fundamental pillar of the Philippine concept
of national territory.
The guiding principle for resolving the
issue about offshore islands is the archipelagic
principle, which is enshrined in Art. 1 of the 1987
Constitution and has been one of the
fundamental pillars of the Philippine concept of
national territory. Since the 1950s, the Philippines
has pushed this principle, which led to the so-
called "Archipelagic Doctrine" in international law
and has become the legal and political basis for
considering our 7,107 islands as one political unit.
The "Archipelagic Doctrine" is one of our most
important contributions to the international legal
system; without it, the widely scattered islands of
our archipelago will be separated by international
waters, and the Filipino nation will be deprived of
the large tracts of marine resources between the
islands that it has claimed since its inception.
Central to the archipelagic principle is the
concept of equality between landmasses,
where each island regardless of size is
treated in the same manner as all others.
Without such equality of treatment, small
outlying islands like Tawi-Tawi and Batanes may
be considered as mere territories not entitled to
provincial or municipal status; at most they may
be mere attachments to some province located in
one of the 10 major landmasses of the country.
Equally important to the archipelagic principle is
the concept of unity between land and
water, where the water forms the link
between the disparate islands. The proper
application of the doctrine demands that, as a
national policy, we should treat all of our islands
in the same manner, not allowing some of them
to be insignificant as if they were mere parts of
the water, and that we should not allow the
waters to create highly fragmented political units.
Aerial Domains
Article 1, Sovereignty: The contracting
States recognize that every State has
complete and exclusive sovereignty over
the airspace above its territory. This refers to
the air space above the land and waters of the
State. The Convention on International Civil
Aviation, also known as the Chicago Convention,
established the International Civil Aviation
Organization (ICAO), a specialized agency of the
United Nations charged with coordinating and
regulating international air travel. The Convention
establishes rules of airspace, aircraft registration
and safety, and details the rights of the
signatories in relation to air travel. The
Convention also exempts air fuels from tax. The
document was signed on December 7, 1944 in
Chicago, Illinois, by 52 signatory states. The
Convention defines the supreme authority of
each state to its airspace. Relevant provisions of
the convention relates to such recognition and
the elements of a state’s territory
Territorial Waters
Out to 12 nautical miles from the baseline,
the coastal state is free to set laws, regulate use,
and use any resource. Vessels were given the
right of "innocent passage" through any territorial
waters, with strategic straits allowing the passage
of military craft as "transit passage", in that naval
vessels are allowed to maintain postures that
would be illegal in territorial waters. "Innocent
passage" is defined by the convention as passing
through waters in an expeditious and continuous
manner, which is not “prejudicial to the peace,
good order or the security” of the coastal state.
Fishing, polluting, weapons practice, and spying
are not “innocent", and submarines and other
underwater vehicles are required to navigate on
the surface and to show their flag. Nations can
also temporarily suspend innocent passage in
specific areas of their territorial seas, if doing so
is essential for the protection of its security.
Archipelagic Waters
The convention set the definition of
Archipelagic States in Part IV, which also defines
how the state can draw its territorial borders. A
baseline is drawn between the outermost points
of the outermost islands, subject to these points
being sufficiently close to one another. All waters
inside this baseline will be Archipelagic Waters
and included as part of the state's internal
waters.
Internal waters
Covers all water and waterways on the
landward side of the baseline. The coastal state is
free to set laws, regulate use, and use any
resource. Foreign vessels have no right of
passage within internal waters.
The Baseline Methods
Baselines are reference lines drawn by a
coastal or archipelagic State using different
methods as discussed below. They are used to
measure the breadth of the territorial sea (12nm),
contiguous zone (24 nm), EEZ (200nm) and
continental shelf (up to 350nm). Also, the waters
enclosed by the baselines are called archipelagic
waters over which an archipelagic State exercises
sovereignty.
According to the UNCLOS, there are three
(3) methods that can be employed in determining
a State’s baselines, namely:
1. Normal Baseline, according to Art. 5, “is
the low-water line along the coast as
marked on large-scale charts officially
recognized by the coastal State.”
2. Straight Baseline, according to Art. 7, can
be employed if ever “the coastlines are
indented and cut into or there is a fringe
of islands along the coast in its immediate
vicinity.”
3. Archipelagic Baseline, according to Art. 47,
is a method of “joining the outermost
points of the outermost islands and drying
reefs of an archipelago provided that
within such baselines are included the
main island and an area in which the ratio
of the area of the water to the area of the
land, including atolls, is between 1:1 and
9:1.”
Of the three methods, the archipelagic
baselines method is most applicable and
advantageous to an archipelago such as
ours. Otherwise, to use either the Normal or
Straight baseline methods, which are primarily
designed for coastal States, would effectively
waive our status as an archipelagic State and lose
much of the archipelagic waters as defined
above.
Doable Charter Change
By: Fr. Joaquin G. Bernas S. J.
Philippine Daily Inquirer
11:08 pm | Sunday, July 22nd, 2012
In my column last week I ended with the
suggestion that before Congress can attempt to
touch the substantive provisions of the
Constitution, it should first find a way of settling
how it will proceed in light of the vague
amendatory provision of the Constitution. I also
said that the opponents of Charter change are
probably saying: “Let’s see you do it!”
If what Speaker Feliciano Belmonte and
Senate President Juan Ponce Enrile are saying
about Charter change is an indication that there
is an atmosphere favoring Charter change in both
the House and the Senate, there may be a way of
doing it quickly. What I wrote about earlier as a
fourth mode of Charter change might be the way.
What is this fourth mode?
But first, what are the currently discussed
and acceptable modes? The first is Charter
change through a constitutional convention. This
entails electing a body of representatives distinct
from Congress. This can be as expensive as
supporting a second Congress. The nation is
sharply divided about using it. It also opens up
the entire Constitution for total overhaul, a
prospect I myself do not favor.
The second is through “initiative and
referendum.” This was tried by Sigaw ng Bayan
and the outcome was a disaster.
The third is through Congress in joint
session assembled but voting separately.
Congress in joint session simply converts
itself into a constituent assembly. This is how
it was done under the 1935 Constitution, and it
can still be done under the current Constitution if
only the House and the Senate can agree to use
it. But like a constitutional convention, it opens
the entire Constitution for examination and
revision.
What I would call the fourth mode is
Charter change through Congress doing it as two
houses in separate sessions. The two houses can
support a “surgical” mode of change focused only
on one amendment. How will this work?
It will work pretty much like the legislative
process. It can start in either house with a bill
proposing a focused amendment. The house
where the bill is filed threshes it out as it does
legislative bills and concludes it with approval by
a three-fourths vote of all the members. The
approved bill is next sent to the other house for a
similar processing. Once a constitutional
amendment bill is approved by both houses, it
can be submitted for ratification by the people
during the next national election.
But where in the Constitution does one
find this mode? The elements of this mode are all
in Article XVII. The fundamental principle is
that what is not prohibited by the
Constitution, either explicitly or implicitly,
is left to the discretion of Congress
provided it can be traced somehow to the
powers of Congress.
It is clear from Article XVII that the power
to propose amendments can only be activated by
Congress. The two houses of Congress are not
required, as they were under the 1935
Constitution, to be in joint session. Hence, it is
quite possible for the two houses to formulate
amendments the way they formulate laws—as
they are where they are. Once one house is
through with a draft, it is passed on to the other
house for action. If there is a prohibition, it can
come either from the letter of the Constitution
(and there is none) or from the fundamental
structure of our constitutional government. Thus,
for instance, the implicit prohibition of joint voting
comes from the bicameral structure of Congress.
Where will President Aquino be in all of
this? It is clear that the President is adamantly
opposed to constitutional change now. But it is
also clear from the text of the Constitution
that the president has no role in the
formulation of amendments except to the
extent that he can influence the members of
Congress, as President Aquino did in the recent
impeachment exercise. His direct role will only be
in the formulation of the budget needed for the
plebiscite. But if Congress is truly determined to
achieve constitutional change, budgetary
problems can be solved.
 This brings us finally to the will and
willingness of Congress to make the change. Are
Senate President Enrile and House Speaker
Belmonte speaking for their respective houses or
only for themselves? Will all the members of the
House, and not just the famous 188, click their
heels and salute when Belmonte calls for Charter
change, as they did when President Aquino called
for impeachment? Can Enrile succeed in
overcoming the reluctance of the Senate to play
in the Charter change game? Can the two of
them co-opt the President into their plans? There
are as yet no clear answers to these questions.