WHEREFORE, after due deliberation and consultation, the Secretary resolves to impose the fines amounting to TWENTY-NINE MILLION FOUR HUNDRED THOUSAND PESOS (PhP 29,400,000.00) jointly and solidarily against [petitioners] covering the period starting from 07 May 2009, the lapse of the fifth year from effectivity of the Clean Water Act as provided for under Section 8 thereof, to 30 September 2009. Thereafter, a fine of Two Hundred Thousand Pesos (PhP 200,000.00) per day shall be fined against [petitioners] until such time that [petitioners] have already fully complied with the provisions of RA 9275.MWSS and Manila Water filed separate motions for reconsideration of the SENR's Order dated October 7, 2009, both of which were denied in another Order dated December 2, 2009, viz.:
[Petitioners] are hereby directed to pay the fines within ten (10) days from receipt hereof.
[Petitioners'] payment shall be made through the EMB Central Office at Visayas Ave., Diliman, Quezon City.
The Regional Executive Director (DENR-Region NCR) or his duly authorized representative is hereby directed to serve this Order within seventy-two (72) hours from receipt hereof. A report shall likewise be submitted to the Board within forty-eight (48) hours from execution stating the proceedings taken therein.
WHEREFORE, after due deliberation and consultation, the Secretary hereby resolves to DENY the Motion for Reconsideration filed by [petitioners], MWSS and Manila Water and direct the same to comply with the previous Order dated 07 October 2009. As to Maynilad, since it had failed to submit its Motion for Reconsideration within the allowable period, the Secretary deemed their non-submission as a waiver of their right to be heard and submit evidence. Hence, the Secretary hereby directs the same to comply with the said previous Order.On November 19, 2009, Maynilad filed its first motion for reconsideration. On December 9, 2009, Maynilad instituted a second motion for reconsideration, which the PAB denied outright for lack of merit in its Order dated March 17, 2010.
The Regional Executive Director (DENR-Region NCR) or his duly authorized representative is hereby directed to serve this Order within seventy-two (72) hours from receipt hereof. A report shall likewise be submitted to the Board within forty-eight (48) hours from execution stating the proceedings taken therein.
WHEREFORE, the petition is DISMISSED. Petitioner [Maynilad] is directed to comply with the Orders of the DENR-PAB dated October 7, 2009, December 2, 2009 and March 17, 2010.The Court of Appeals also denied Maynilad's motion for reconsideration in its Resolution dated July 17, 2012. Disposing of the substantive merits of the case, the Court of Appeals rebuffed petitioners' invocation of the ruling of the Supreme Court in MMDA v. Concerned Citizens of Manila Bay which, Maynilad asserts, supersedes the five-year compliance period set by the Clean Water Act for petitioners to connect all the existing sewage line found in the whole of Metro Manila and other Highly Urbanized Cities (HUCs) as defined in the Local Government Code of 1991. The Court of Appeals further held that the invoked item in the body of the MMDA case relating to petitioners' obligations in the clean-up of Manila Bay, simply sets different deadlines: one for submission by Maynilad and Manila Water of their plans and projects for the construction of WWTFs in certain areas in Metro Manila, Rizal and Cavite, and another for the actual construction and completion thereof.
WHEREFORE, the petition is hereby DISMISSED. The Orders dated October 7 and December 2, 2009 issued by the DENR-PAB Case No. NCR-00794-09, are hereby AFFIRMED.The Court of Appeals also denied Manila Water's motion for reconsideration in its Resolution dated April 11, 2013.
WHEREFORE, the instant petition is DISMISSED for lack of merit.MWSS's motion for reconsideration was also denied in the Court of Appeals Resolution dated June 17, 2013.
The MWSS shall submit to the Court on or before June 30, 2011 the list of areas in Metro Manila, Rizal and Cavite that do not have the necessary wastewater treatment facilities. Within the same period, the concessionaires of the MWSS shall submit their plans and projects for the construction of wastewater treatment facilities in all the aforesaid areas and the completion period for said facilities, which shall not go beyond 2037.Manila Water's Arguments
Respondents' Arguments through the Office of the Solicitor General
Effectivity of the CWA. The CWA was published on April 21, 2004 and subsequently took effect on May 6, 2004.Last. The overarching framework in our disposition herein considers the following:
The SENR's Orders are appealable to the Office of the President
The PAB has the exclusive and original jurisdiction with respect to adjudication of pollution cases based on exceedance of the DENR Effluent Standards and other acts defined as prohibited under Section 27 of R.A. 9275.In 2009, during the pendency of DENR-PAB Case No. NCR-00794-00, proceedings in the PAB were governed by Resolution No. I-C, Series of 1997. It defined the Board's sole and exclusive jurisdiction and the finality of its decisions. Its Rule III, on Jurisdiction and Authority, read:
SECTION 1. JURISDICTION OF THE BOARD. - The Board shall have sole and exclusive jurisdiction over all cases of pollution, as defined herein, and all other matters related thereto, including the imposition of administrative sanction, except as may be provided by law.And Rule XI, on Finality of Decisions:
SECTION 1. FINALITY OF ORDER, RESOLUTION OR DECISION AND PERIOD TO APPEAL - Subject to the provisions of the preceding rule, any order, resolution or decision of the Board shall become final and executory after fifteen (15) days from the date of receipt thereof, unless a motion for reconsideration is filed or an appeal is perfected within said period. The mere filing of an appeal shall not stay the decision of the Board.However, the Orders of the SENR are different from the issuances of the PAB. While under its 1997 rules, the PAB had jurisdiction to impose the fine or administrative sanction on all cases of pollution, it is Section 28 of the Clean Water Act and its IRR, Rule 28 of DAO No. 2005-10, which must be correctly applied. It was already in effect in 2009 and specifically bestows upon the Secretary of the DENR, upon recommendation of the PAB, in cases of commission of prohibited acts under and violations of the Clean Water Act, the power to impose fines, order the closure, suspension of development or construction, or cessation of operations, or, where appropriate disconnection of water supply.
Notice of ViolationIn clear terms, the NOV stated the charges against petitioners, gave a directive to attend the technical conference for simplification of issues and stipulations of facts, and apprised them of the liability imposed on violators under Section 28 of the Clean Water Act. Hence, petitioners were notified of the charges against them, were given an opportunity to be heard during a technical conference, and were informed of the penalty for possible violations of the Clean Water Act. These charges were the same accusations for which petitioners were eventually found liable for. In addition, petitioners wrote several letters addressed to the PAB and the Secretary of the DENR formalizing their position in response to the Complaint-Affidavits of the Regional Directors of the DENR-EMB. In turn, the Regional Directors filed their Comments thereto, which were amply refuted by the petitioners. Demonstrably, the SENR, upon recommendation of the PAB, pursuant to the Clean Water Act, validly imposed the fine after the charge, hearing, and due deliberation.
Notice is hereby served upon you that the Manila Water Sewerage System (MWSS) has committed violations as found during the periodic monitorings conducted by this Office from January to March 2009.
Act Constituting Violation
1. You have not provided, installed or maintained sufficient wastewater treatment facilities satisfactory enough in quantity to meet the standards and objectives of the law. Neither have you carried out the connection of the sewage line being mandated by law, notwithstanding the Order of the Court and the lapse of the five-year period provided by RA 9275.
2. Sec. 8 of RA 9275 states that "[w]ithin five (5) years following the effectivity of this Act, the agency vested to provide water supply and sewerage facilities and/or concessionaires in Metro Manila and other highly urbanized cities (HUCs) as defined in Republic Act No. 7160, in coordination with LGUs, shall be required to connect the existing sewage line found in all subdivisions, condominiums, commercial centers, hotels, sports and recreational facilities, hospitals, market places, public buildings, industrial complex and other similar establishments including households to available sewerage system."
In this regard, you are hereby directed to attend a technical conference to be conducted by the Board on May 5 - 9:00 am for the purpose of simplification of the issues and stipulation of facts.
Please be informed that pursuant to Section 28 of the Clean Water Act, a fine of not less than Ten Thousand Pesos (PhP 10,000.00) but not more than Two Hundred Thousand Pesos (PhP 200,000.00) per day of violation may be imposed to the offender who violates the provision of the Act and its IRR.
SECTION 28. Fines, Damages and Penalties. - Unless otherwise provided herein, any person who commits any of the prohibited acts provided in the immediately preceding section or violates any of the provision of this Act or its implementing rules and regulations, shall be fined by the Secretary, upon the recommendation of the PAB in the amount of not less than Ten thousand pesos (P10,000.00) nor more than Two hundred thousand pesos (P200,000.00) for every day of violation. The fines herein prescribed shall be increased by ten percent (10%) every two (2) years to compensate for inflation and to maintain the deterrent function of such fines: Provided, That the Secretary, upon recommendation of the PAB may order the closure, suspension of development or construction, or cessation of operations or, where appropriate disconnection of water supply, until such time that proper environmental safeguards are put in place and/or compliance with this Act or its rules and regulations are undertaken. This paragraph shall be without prejudice to the issuance of an ex parte order for such closure, suspension of development or construction, or cessation of operations during the pendency of the case. (Emphasis supplied.)This participation by the PAB in the imposition of fines as penalty under Section 28 of the Clean Water Act is also phrased as recommendatory by the Revised Rules of the Pollution Adjudication Board on Pleading, Practice and Procedure in Pollution Cases:
B. EXPANDED POWERS OF THE BOARDOver and beyond the risk of repetition, it must be underscored here that the role of the PAB in the imposition of fines for violation of Section 28 of the Clean Water Act is restricted to a recommendation of penalty. The execution of punitive power thereunder remains with the SENR. This, however, should not be taken to mean that the recommendatory role of the PAB is dispensable. Its technical expertise in pollution cases such as the one at hand remains crucial, and this expertise, the SENR definitely did not disregard. Despite the lack of actual or formal recommendation of liability given by the PAB against petitioners, the technical conference was conducted by the PAB, and the findings during the said conference and upon deliberation on the pleadings of the parties were produced by the PAB. The latter body, referred to as the Board by the SENR, had determined petitioners' liabilities on the basis of its own lengthy disquisitions, as noted by the SENR in its Order dated October 7, 2009, viz.:
Pursuant to specific laws, the Board shall exercise, but not be limited to, the following powers:
x x x x
B.3 Under Section 28 of R.A. 9275, Clean Water Act of 2004, the Board shall:
8. Recommend to the DENR Secretary the imposition of fines for acts of omission prohibited under Section 27 of the Act. [Emphasis supplied.]
During the deliberation of the case, the Board took note of the following findings, to wit:These findings by the PAB, albeit not specifically labelled as a "recommendation", laying out petitioners' accountability and calling for the imposition of fine, were all cited, adopted, and relied upon by the SENR in penalizing them under Section 28 of the Clean Water Act. It also bears noting that petitioners attended this technical conference before the PAB, in which all of the parties thereto were allowed to air their respective sides.
As to the violation of Section 8 of R.A. 9275, the justification submitted by the respondent is insufficient to justify its failure to comply with the said provision. R.A. 9275 is a statutory law, compliance of which is mandatory. It is mala prohibita as opposed to mala in se. The rule is that in acts mala in se there must be a criminal intent, but in those mala prohibita it is sufficient if the prohibited act was intentionally done. x x x It has already been cited by the Supreme Court that violation of environmental laws, are mala prohibita x x x. It is sufficient that the acts complained of were proven (and in this instance admitted), and no amount of justification will clear it of any violation.
It should be noted that the excuse offered by respondents that several customers refuse to connect is irrelevant. Section 8 of R.A. 9275 itself makes it mandatory for any sewage and septage to comply with the said rule to wit[:] "Provided, further, that all sources of sewage and septage shall comply with the requirements herein". Persons in violation of such mandatory provision may be held accountable in accordance with Section 28 of the said law.
x x x x
Thus, the refusal of any person under the said law is already addressed by the same law.
Moreover, assuming that such excuse would justify non-compliance of a mandatory provision of the law, such excuse partakes the nature of an affirmative defense. It is incumbent upon the respondent to prove his affirmative defense by clear and convincing evidence. x x x Aside from the mere statements given by the respondent, no proof or evidence was shown to justify its stance.
It should further be noted that the five (5)-year period was made to provide sufficient time to comply with the interconnection of all water supply and sewerage facilities. The continued failure of providing a centralized sewerage system in compliance with the said law means that several sewage line continues to dump and release untreated sewerage within their vicinities - resulting in unmitigated environmental pollution. The fact of the matter is that, because of the failure to completely centralized [sic] the sewerage system and comply with Section 8 of the law, untreated water are [sic] continuously being dumped within existing water areas and the Manila Bay, resulting in the continued pollution of the said water areas.
Moreover, strict compliance of the law is necessary in light of the said 18 December 2008 Order issued by the Supreme Court, quoting portions of the said decision:"In light of the ongoing environmental degradation, the Court wishes to emphasize the extreme necessity for all concerned executive departments and agencies to immediately act and discharge their respective official duties and obligations. Indeed, time is of the essence; hence, there is a need to set timetables for the performance and completion of the tasks, some of them as defined for them by law and the nature of their respective offices and mandates . . ."In its decision on the case at bar, the High Court directed the DENR to fully implement its Operational Plan for the Manila Bay Coastal Strategy for the rehabilitation, restoration of the Manila Bay at the earliest possible time and to call regular coordination meetings with concerned government departments and agencies to ensure the successful implementation of the aforesaid plan of action in accordance with its indicated completion schedules. In same vein, it ordered the MWSS to provide, install, operate and maintain the necessary adequate waste water treatment facilities in Metro Manila, Rizal, and Cavite where needed at the earliest possible time.
This pronouncement of the Court finds basis in Section 8 of R.A. 9275 which was already stated earlier.
As regards the argument of the respondents that the MWSS entered into a Concessionaire Agreement with Manila Water and Maynilad prior to the CWA and therefore they believed that subsequent law should not impair existing agreements, the Board took note that the parties review the provisions of the CA every five (5) years. If this is the case and if there is indeed intention on the part of the parties to comply with the law, the parties should have made the schedule in the CA consistent with the requirement of the said law.
Based on the foregoing discussion, it is clear that the respondents have committed a violation under the provision of the Clean Water Act or R.A. 9275, particularly Section 8 thereof which a penalty of fines ranging from PhP 10,000.00 to PhP 200,000.00 per day of violation may be imposed against them.
Inasmuch as there is a strong basis as shown by records that the respondents indeed have not complied with the requirements of the law to the letter and that tremendous amount of pollution exists at the above-cited receiving bodies of water, the maximum amount of penalty should be meted out against respondents. (Emphasis supplied, citations omitted.)
All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State. With the exception of agricultural lands, all other natural resources shall not be alienated. The exploration, development, and utilization of natural resources shall be under the full control and supervision of the State. The State may directly undertake such activities, or it may enter into co-production, joint venture, or production-sharing agreements with Filipino citizens, or corporations or associations at least sixty per centum of whose capital is owned by such citizens. Such agreements may be for a period not exceeding twenty-five years, renewable for not more than twenty-five years, and under such terms and conditions as may be provided by law. In cases of water rights for irrigation, water supply, fisheries, or industrial uses other than the development of water power, beneficial use may be the measure and limit of the grant.The above constitutional provision is the embodiment of jura regalia, or the Regalian doctrine, which reserves to the State ownership of all natural resources. The Regalian doctrine is an exercise of the State's sovereign power as owner of lands of the public domain and of the patrimony of the nation. Sources of water form part of this patrimony.
[P]olice power is the power of the state to promote public welfare by restraining and regulating the use of liberty and property. It is the most pervasive, the least limitable, and the most demanding of the three fundamental powers of the State. The justification is found in the Latin maxim salus populi est suprema lex (the welfare of the people is the supreme law) and sic utere tuo ut alienum non laedas (so use your property as not to injure the property of others). As an inherent attribute of sovereignty which virtually extends to all public needs, police power grants a wide panoply of instruments through which the State, as parens patriae, gives effect to a host of its regulatory powers. We have held that the power to "regulate" means the power to protect, foster, promote, preserve, and control, with due regard for the interests, first and foremost, of the public, then of the utility and of its patrons.Hand-in-hand with police power in the promotion of general welfare is the doctrine of parens patriae. It focuses on the role of the state as a "sovereign" and expresses the inherent power and authority of the state to provide protection of the person and property of a person non sui juris. Under the doctrine, the state has the sovereign power of guardianship over persons of disability, and in the execution of the doctrine the legislature is possessed of inherent power to provide protection to persons non sui juris and to make and enforce rules and regulations as it deems proper for the management of their property. Parens patriae means "father of his country", and refers to the State as a last-ditch provider of protection to those unable to care and fend for themselves. It can be said that Filipino consumers have become such persons of disability deserving protection by the State, as their welfare are being increasingly downplayed, endangered, and overwhelmed by business pursuits.
[T]he state had the power to reconsider past allocation decisions even though an agency had made those decisions after due consideration of their effect on the public trust. This conclusion reflected the view that water users could not acquire a vested property right in the water itself; they merely obtained a usufructuary right to the water.Academic literature further imparts that "[p]art of this consciousness involves restoring the view of public and state ownership of certain natural resources that benefit all. [...]" The "doctrine further holds that certain natural resources belong to all and cannot be privately owned or controlled because of their inherent importance to each individual and society as a whole. A clear declaration of public ownership, the doctrine reaffirms the superiority of public rights over private rights for critical resources. It impresses upon states the affirmative duties of a trustee to manage these natural resources for the benefit of present and future generations and embodies key principles of environmental protection: stewardship, communal responsibility, and sustainability."
Water pollution is a particularly costly problem in densely populated urban areas such as Metro Manila. Ninety percent of our drinking water comes from underground sources. But these sources are threatened by depletion and contamination, particularly from non-existence of sewerage systems or faulty sewerage systems that seep into underground water sources. Fresh water sources near many cities have become so severely contaminated that more distant sources have to be explored at high costs. Although sophisticated purification methods to clean polluted rivers exist, such methods are expensive and complicated. Meanwhile, the cost of unsafe water is also high. We must remember and realize that in developing countries like the Philippines, an estimated 80% of all illnesses are waterborne.The ensuing legislative deliberations on Senate Bill No. 2115 exposed some of the causes of poor water management, which included fragmentation of the numerous government arms involved in water supply and regulation. It was hoped that the passage of the Clean Water Act would serve as the remedial tool in the integration and proper definition of the State's policies on water management and conservation. In the same vein, the Clean Water Act assigned specific obligations for stakeholders and actors: This includes concessionaires, among others. The Clean Water Act further connects water regulation with septage management programs, including the Code on Sanitation of the Philippines, Water District Law, the Local Government Code, the National Building Code, and the Revised National Plumbing Code.
Inefficient water resource management also plays a role in water scarcity. Water resources are developed and managed, more or less, independently at different levels of jurisdiction-national, regional, and local-and by separate sectors, including our industries, agriculture, municipal water supply, recreation and so on. Such fragmentation leads to poor planning of water use and leads people to use water carelessly and without regard to its economic value.
x x x x
The lack of usable, clean water resources is a problem that confronts us today. This is the reason, Mr. President, this committee thought of submitting this measure as our humble contribution in finding alternative solutions. This bill will rationalize the various government institutions and agencies whose functions have long been fragmented, resulting in uncoordinated and circuitous bureaucratic polices and wasted funds. We put to task the Department of Environment and Natural Resources (DENR) to come up with Water Reports and Water Quality Management Systems to be accomplished within a reasonable time frame, bearing in mind the urgency of this problem. We also provided the mechanism for the participation of our local executives and planners, non-government organizations and the civil society.
x x x x
This bill is not lacking in incentives and rewards and it has muscle to penalize acts that further pollute all our water sources as well. We increased the fines so that with strict implementation, we can curb the damage we continue to inflict, ironically, to our life source.
x x x x
x x x The Manila Bay has been derisively described as the widest septic tank ever made by Filipinos. The residuals discharged into the watercourses consist of biodegradable, nonbiodegradable and persistent pollutants of which, regardless of the scientific classifications given, result in water pollution. Domestic sewage is the most commonly known organic waste, although industrial wastes are far greater in volume. We have a scenario where we do not have a concrete sewage treatment program. Cited earlier, these wastes seep to the ground, significantly altering our aquifers and surface water. Without treatment, they are ingested by us. The misery is worse for those who cannot afford treated water, the very reason we have a disease-prone population.
Domestic Sewage Collection, Treatment and Disposal. - Within five (5) years following the effectivity of this Act, the agency vested to provide water supply and sewerage facilities and/or concessionaires in Metro Manila and other highly urbanized cities (HUCs) as defined in Republic Act No. 7160, in coordination with LGUs, shall be required to connect the existing sewage line found in all subdivisions, condominiums, commercial centers, hotels, sports and recreational facilities, hospitals, market places, public buildings, industrial complex and other similar establishments ·including households to available sewerage system: Provided, That the said connection shall be subject to sewerage services charge/fees in accordance with existing laws, rules or regulations unless the sources had already utilized their own sewerage system: Provided, further, That all sources of sewage and septage shall comply with the requirements herein. In areas not considered as HUCs, the DPWH in coordination with the Department, DOH and other concerned agencies, shall employ septage or combined sewerage-septage management system.Section 8 thus imposes the following obligations, dissected as follows:
For the purpose of this section, the DOH, in coordination with other government agencies, shall formulate guidelines and standards for the collection, treatment and disposal of sewage including guidelines for the establishment and operation of centralized sewage treatment system.
Section 7 is not a condition precedent to compliance with Section 8
The Department of Public Works and Highways (DPWH), through its relevant attached agencies, in coordination with the Department, LGUs and other concerned agencies, shall, as soon as possible, but in no case exceeding a period of twelve (12) months from the effectivity of this Act, prepare a national program on sewerage and septage management in connection with Section 8 hereof. Such program shall include a priority listing of sewerage, septage and combined sewerage-septage projects for LGUs based on population density and growth, degradation of water resources, topography, geology, vegetation, programs/projects for the rehabilitation of existing facilities and such other factors that the Secretary may deem relevant to the protection of water quality. On the basis of such national listing, the national government may allot, on an annual basis, funds for the construction and rehabilitation of required facilities.Contrasted with Section 8, We identify the legal duties under Section 7:
Each LGU shall appropriate the necessary land, including the required rights-of-way/road access to the land for the construction of the sewage and/or septage treatment facilities.
Each LGU may raise funds to subsidize necessary expenses for the operation and maintenance of sewerage treatment or septage facility servicing their area of jurisdiction through local property taxes and enforcement of a service fee system.
SEC. 15. National Sewerage and Septage Management Program. The Department, in coordination with the DOH, Local Water Utilities Administration (LWUA), NWRB, Metropolitan Waterworks and Sewerage System (MWSS) and other concerned agencies, shall, as soon as possible, but in no case exceeding a period of twelve (12) months from the effectivity of this Act, prepare a national program on sewerage and septage management in connection with Section 16.The differences are minimal. While the prestation in Section 16 above is still the connection of the different kinds of establishment in Metro Manila and HUCs of their sewage line to the available sewerage system, the compliance period provided was seven (7) years from effectivity of the law, the main actors were the actual establishments with a sewage line, and the connection to be undertaken through "the agency vested to provide water supply and sewerage facilities or through the concessionaires."
Such program shall include a priority listing of sewerage, septage and combined sewerage-septage projects for LGUs based on population density and growth, degradation of water resources, topography, geology, vegetation, programs/projects for the rehabilitation of existing facilities and such other factors that the Secretary may deem relevant to the protection of water quality. On the basis of such national listing, the national government may allot, on an annual basis, funds for the construction and rehabilitation of required facilities. LGUs may also enter into Build-Operate-and-Transfer (BOT) or joint venture agreement with private sector for the construction, rehabilitation and/or operation of sewerage treatment or septage facilities in accordance with existing laws, rules and regulations.
Each LGU may raise funds to subsidize necessary expenses for the operation and maintenance of sewerage treatment or septage facility servicing their area of jurisdiction through local property taxes and enforcement of a service fee system.
SEC. 16. Domestic Sewage Collection, Treatment and Disposal. - Within seven (7) years following the effectivity of this Act, all subdivisions, condominiums, commercial centers, hotels, sports and recreational facilities, hospitals, market places, public buildings, industrial complex and other similar establishments including households situated in Metro Manila and other Highly Urbanized Cities (HUCs) as defined in Republic Act No. 7160 shall be required to connect their sewage line to available sewerage system either through an agency vested to provide water supply and sewerage facilities or through the concessionaire/s subject to sewerage services charge/fees in accordance with existing laws, rules or regulations unless such sources had already utilized their own sewerage system.
In areas not considered as HUCs, the DPWH in coordination with the Department, DOH and other concerned agencies, shall employ septage or combined sewerage-septage management system.
For the purpose of this Section, the DOH, in coordination with other government agencies, shall formulate guidelines and standards for the collection, treatment and disposal of sewage including guidelines for the establishment and operation of centralized sewage treatment system.
Senator Jaworski. On page 13, line 7, delete the entire paragraph and replace the same to read as follows:While the reason for the amendment was not explicitly reflected in the Senate deliberations, it can be assumed that our lawmakers intended immediate enforcement and implementation of the law in reducing the compliance period from seven (7) years to five (5) years. Also with the amendment, the actors are now the LGUs and the water agency vested to provide water supply and sewerage facilities and/or concessionaires in Metro Manila and other HUCs. The Conference Committee Report on SB No. 2115 and HB No. 5398, thereafter, recommended for approval the current Section 8 of the Clean Water Act with the obligation thereunder now resting alone on MWSS and its concessionaires.
"SEC. 16. DOMESTIC SEWAGE COLLECTION, TREATMENT AND DISPOSAL - WITHIN FIVE (5) YEARS FOLLOWING THE EFFECTIVITY OF THIS ACT, THE LOCAL GOVERNMENT UNITS AND/OR THE AGENCY VESTED TO PROVIDE WATER SUPPLY AND SEWERAGE FACILITIES AND/OR CONCESSIONAIRES IN METRO MANILA AND OTHER HIGHLY URBANIZED CITIES AS DEFINED IN REPUBLIC ACT 7160 SHALL BE REQUIRED TO CONNECT THE EXISTING SEWAGE LINE FOUND IN ALL SUBDIVISIONS, CONDOMINIUMS, COMMERCIAL CENTERS, HOTELS, SPORTS AND RECREATIONAL FACILITIES, HOSPITALS, MARKET PLACES, PUBLIC BUILDINGS, INDUSTRIAL COMPLEX AND OTHER SIMILAR ESTABLISHMENTS INCLUDING HOUSEHOLDS TO AVAILABLE SEWERAGE SYSTEM PROVIDED THAT THE SAID CONNECTION SHALL BE SUBJECT TO SEWERAGE SERVICES CHARGE/FEES IN ACCORDANCE WITH EXISTING LAWS, RULES OR REGULATIONS UNLESS THE SOURCES HAD ALREADY UTILIZED THEIR OWN SEWERAGE SYSTEM.
Maynilad and Manila Water did not comply with Section 8
(a) An updated list of the respective service areas under their concession agreements with the [MWSS];With the interest of the public in mind, We concentrate on item (b) above. The concessionaires were required to give the status of its compliance to Section 8 of the law. We quote their respective reports in pertinent part:
(b) An updated report on the status of compliance with Section 8 of the [Clean Water Act]; and
(c) List of subdivisions, condominiums, commercial centers, hotels, sports and recreational facilities, hospitals, market places, public buildings, industrial complex and other similar establishments with existing sewerage lines.
A. Maynilad's ComplianceBasing on Maynilad and Manila Water's own assertions, petitioners' compliance with Section 8 of the law is dismal at best. Given that a decade has already passed following the effectivity of the Clean Water Act, both concessionaires' compliance to Section 8 at this current year do not even reach 20% sewerage coverage.
a) Compliance with Section 8.1 - Sewerage and Sanitation Projects which comply with the standards set forth by the DOH, DENR and DA
7. With respect to Section 8.1, as of 30 April 2017, Maynilad is operating twenty (20) wastewater treatment facilities ("facilities"), which are comprised of seventeen (17) sewage treatment plants (STP), two (2) sewage and septage treatment plants ("SSpTP") and one (1) septage treatment plant (SpTP).
x x x x
b) Compliance with Section 8.3 - Mandatory connection of identified establishments and households to the existing sewerage systems
x x x x
20. With regard to compliance with Section 8.3 of the IRR, the DPWH has not yet issued a compliance plan for the mandatory connection of identified establishments and households to the existing sewerage systems.
x x x x
c) Section 8.4 Role of MWSS and Water Concessionaires in Metro Manila
x x x x
24. As of 30 April 2017, fifteen (15) STPs, one (1) SSpTP and one (1) SpTP with a combined sewage treatment capacity of 72,917 cubic meters per day ("CMD") and combined septage treatment of 740 CMD have been completed by Maynilad.
x x x x
25. With the completion of the 15 additional STPs, Maynilad has attained 13% sewerage coverage for its water-served population as of 30 April 2017. This is four-percentage points higher than its 9% sewerage coverage in 2009. As a matter of information, the sewerage coverage is expressed as a percentage of the total water-served population in the service area of Maynilad at the time the target was set. In 2009, Maynilad had 814,645 billed water service connections. Water being a basic necessity, Maynilad prioritized the delivery of water to its customers in its service area. Resultantly, the provision of water has outpaced the provisions of SSCs. Nevertheless, with the completion of 15 additional STPs, Maynilad's sewerage coverage has increased to 13% despite the fact that its total billed services reached up to 1,312,223 as of the end of 2016 (from the original 814,645).
B. Manila Water's Compliance
x x x x
Manila Water respectfully submits that by all indications, it is faithfully complying with the spirit and intent of the Clean Water Act and its IRR. From a minimal sewerage system in 1997, Manila Water has successfully built from the ground-up thirty-eight (38) STPs and one (1) SSpTP with sewer pipeline networks connecting to households as well as industrial and commercial establishments that avail of its to (sic) sewage collection, treatment and disposal services in the East Zone. These sewage treatment facilities, which include the Marikina North STP (the largest facility of its kind in the Philippines) and the LKK STP (the second largest sewerage facility in the Philippines), have combined capacity of309,544 cubic meters of wastewater per day with a capacity to take on more load, if necessary. In addition, Manila Water also complements its sewage collection, treatment and disposal services by providing sanitation services to regularly clean-up septic tanks throughout the East Zone thereby, making good on its commitment to protect the environment.
Indeed, Manila Water has taken to heart its frontline role in prevention, control, and abatement of pollution of water resources by providing a continuously expanding and improving scope of sewage collection, treatment and disposal services amidst its pursuit of economic growth.
c. Sewer Service Accomplishments and Obligation Targets
With the foregoing operational STPs with future expansion well-underway, Manila Water has significantly expanded its sewage collection, treatment and disposable capability. As stated earlier, from a mere 40,000 m3/day of wastewater treated in 1997, Manila Water now treats 101,049 m3/day of wastewater - a 153% increase in total treated wastewater from 1997. This is equivalent to a total of 36,988,418 cubic meters of treated wastewater per annum which is 50.7% higher than the annual volume of wastewater treated as of 2011 which was then at 24,540,616 cubic meters.
As of 31 December 2016, Manila Water is providing sewage collection, treatment and disposal services to 932,118 persons both in Metro Manila and Rizal.
x x x x
Thus, Manila Water is on-track to comply with its obligation to ensure complete sewerage network coverage by end of the Concession Agreement in 2037 as required by Section 8.4 of the Clean Water Act IRR. A summary of [Manila Water's] sewer service obligation targets as approved by the MWSS and the MWSS-Regulatory Office is shown in Figure 4.0 below:
Area 2016 2021 2026 2031 2037 Service Obligation Metro Manila 19% 49% 77% 96% 100% Sewer Coverage Rizal 3% 15% 28% 37% 98%
[Emphasis and underscoring supplied.]
6.8 Compliance with LawsSecond. Even before the inception of the Clean Water Act, the Court, in Province of Rizal v. Executive Secretary, already had occasion to declare the self-proving fact that "sources of water should always be protected."
The Concessionaire shall comply with all Philippine laws, statutes, rules Regulations, orders and directives of any governmental authority that may affect the Concession from time to time.
16.3 Governing Law
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE REPUBLIC OF THE PHILIPPINES.
16.11 Conduct of the Concessionaire Pending the Expiration Date. The Concessionaire hereby covenants that, from the date three months prior to and including the Expiration Date, unless MWSS shall otherwise consent in writing (which consent shall not unreasonably be withheld), the Concessionaire shall conduct the business and operations of the Concession in the ordinary and usual course in a manner consistent with past best practice and, without limiting the generality of the foregoing, the concessionaire shall:
x x x x
(iii) at all times comply with all material laws, statutes, rules, regulations, orders and directives of any governmental authority having jurisdiction over the Concessionaire or its businesses, except in cases where the application thereof is being contested in good faith or is the subject of an appeal or other legal challenge.
The Water Bill or Statement of Account includes the following charges:Indeed, petitioners have fully and faithfully complied with the proviso in Section 8, only in the aspect that they are authorized under the Service Obligations under the Agreements to impose sewerage services charges and fees for the connection of the existing sewage line to the available sewerage system. They seem to forget, however, that receipt of these fees entailed the legal duty of actually and completely installing the already long-delayed sewerage connections.
l. Basic Charge is your consumption in cubic meter multiplied to the water rate corresponding on your customer classification (i.e. residential, semi-business).
2. CERA is P1.00 per cubic meter of actual water consumed.
3. FCDA (Foreign Currency Differential Adjustment) is computed as a percentage of the basic charge depending on the calculated factor for the quarter.
4. EC (Environmental Charge) is charged to all water service connections to cover desludging and other environmental-related costs. It was then computed as 10% of items a, b, & c. But due to its rationalization with the Sewerage Charge as a result of the second Rate Rebasing, it gradually increased to where it is now 20% of the same items and universally applied to all water connections regardless of classification.
5. SC (Sewerage Charge) used to be 50% of items a, b, & c and charged only to those connected to the sewer lines. As rationalized with the Environmental Charge, Sewerage Charge are now only applicable to sewered connections other than residential and semi-business classifications and has been lowered to 30% for [Manila Water] and 20% for [Maynilad].
6. MSC (Maintenance Service Charge) depending on the size of your meter.
7. VAT (Value Added Tax) is 12% of items 1, 2, 3, 4, 5, & 6 (a, b, c, d, e, & f)
8. Total Current Charges I Total Amount Due
For Residential/Semi-Business Connections:
= sum of items 1, 2, 3, 4, 6 & 7 (a, b, c, d, f, & g)
For Business Groups 1 & 2 Connections:
= sum of items 1, 2, 3, 4, 5, 6 & 7 (a, b, c, d, e, f & g)
(f) In the rate rebasing exercise of 2008, the Parties discussed the prospect of extending the Original Term by fifteen (15) years as the most viable means of enabling [Maynilad] to undertake the following:A contradiction is extant: while there was an acknowledgment of the urgency of their duties under the MMDA v. Concerned Residents of Manila Bay, Maynilad and Manila Water still found space in their private contract to prolong compliance thereto for fifteen more years. This Court cannot accept their highlighted justifications therefor. As earlier pointed out, the completion of the septage and sewerage connections have already been lagging for fifteen years past the effectivity of the Clean Water Act. Had petitioners submitted to the word of the law, this extension would not have been required, since the sewerage and septage connection projects for which the extension is sought could have been completed by now. There is no one else to blame but petitioners' neglect. The public has already suffered because of this delay, and no further extensions could possibly be accommodated without inflicting additional disadvantage to the already aggrieved.
(i) The development of new long-term water sources, as indicated in the [Maynilad] Final Business Plan, and the implementation of large scale water and wastewater projects that could benefit [Maynilad]'s customers for more than 50 years; and
(ii) The acceleration of sewerage and sanitation projects to comply with the Clean Water Act and the decision of the Supreme Court in the case of MMDA, et. al. v. Concerned Residents of Manila Bay directing MWSS to "provide, install, operate, and maintain the necessary adequate waste water treatment facilities in Metro Manila, Rizal, and Cavite where needed at the earliest possible time." [Emphasis supplied.]
MMDA v. Concerned Residents of Manila Bay did not repeal Section 8 of the Clean Water Act
x x x [T]he EMB Regional Directors for NCR, CALABARZON and Region III took exception to the claim of compliance by MWSS and cited the following findings in support of their conclusion: (1) the lack of storage treatment facilities in San Juan and Valenzuela and the unacceptable results of the laboratory analysis of river systems; (2) the fact that there are no wastewater treatment facilities and appropriate sewage system in the Cavite area, particularly in Imus, Bacoor, Noveleta and Kawit; and (3) the absence of wastewater/sewerage program in the Meycauayan Service Area of MWSS. MWSS failed to introduce evidence to refute these findings.These were also given full credence by the PAB and the SENR. We quote with approval apportion of the SENR's pronouncement in its Order dated October 7, 2009:
It should further be noted that the five (5)-year period was made to provide sufficient time to comply with the interconnection of all water supply and sewerage facilities. The continued failure of providing a centralized sewerage system in compliance with the said law means that several sewage [lines continue] to dump and release untreated sewerage within their vicinities resulting in unmitigated environmental pollution x x x.This Court, on more than one occasion, has ruled that by reason of their special knowledge and expertise over matters falling under their jurisdiction, administrative agencies, like respondents PAB and the Regional Offices of the EMB, whose judgment the SENR based its Orders on, are in a better position to pass judgment, and their findings of fact are generally accorded great respect, if not finality, by the courts. Such findings ought to be respected as long as they are supported by substantial evidence. It is not the task of the appellate court nor of this Court to once again weigh the evidence submitted before and passed upon by the administrative body and to substitute its own judgment regarding the sufficiency of the evidence.
Manila Water failed to present any evidence to substantiate its claim that it had offered to connect the existing sewage lines but the customers refused the same. It should be pointed out that in cases where the customers refused to connect sewage lines to the available sewerage system Manila Water is not precluded from enlisting the help of the DENR which, in turn, may request LGUs or other appropriate agencies to sanction these persons pursuant to Section 8.5 of the IRR. x x x Manila Water failed to present any proof that there are indeed sewage lines which were already rendered useless. In sum, Manila Water justifications have no probative value because it miserably failed to present concrete and credible proof to substantiate the same. Verily, bare allegations which are not supported by any evidence, documentary or otherwise, are not equivalent to proof under our rules. Ergo, the DENR-PAB correctly declared that Manila Water's justifications are insufficient considering that no proof or evidence was presented to support the same.
SECTION 28. Fines, Damages and Penalties. - Unless otherwise provided herein, any person who commits any of the prohibited acts provided in the immediately preceding section or violates any of the provision of this Act or its implementing rules and regulations, shall be fined by the Secretary, upon the recommendation of the PAB in the amount of not less than Ten thousand pesos (P10,000.00) nor more than Two hundred thousand pesos (P200,000.00) for every day of violation. The fines herein prescribed shall be increased by ten percent (10%) every two (2) years to compensate for inflation and to maintain the deterrent function of such fines: Provided, That the Secretary, upon recommendation of the PAB may order the closure, suspension of development or construction, or cessation of operations or, where appropriate disconnection of water supply, until such time that proper environmental safeguards are put in place and/or compliance with this Act or its rules and regulations are undertaken. This paragraph shall be without prejudice to the issuance of an ex parte order for such closure, suspension of development or construction, or cessation of operations during the pendency of the case. (Emphasis supplied.)The SENR, as affirmed by the Court of Appeals, aptly fined petitioners with PhP 200,000.00 a day under Section 28, but left out the additional ten percent (10%) increase that is to be applied every two (2) years for inflation adjustment and deterrent purposes.
Petitioners are liable for fines for violation of Section 8, in relation to Section 28, of the Philippine Clean Water Act in the following manner:This instruction further enjoins not only petitioners herein, but all water supply and sewerage facilities and/or concessionaires in Metro Manila and other highly urbanized cities as defined in Republic Act No. 7160 or the Local Government Code, in the strict compliance with Section 8 of Republic Act No. 9275 or the Philippine Clean Water Act.
1. Maynilad Water Services, Inc. shall be jointly and severally liable with Metropolitan Waterworks and Sewerage System for the total amount of PhP 921,464,184.00 covering the period starting from May 7, 2009 to the date of promulgation of this Decision;
2. Manila Water Company, Inc. shall be jointly and severally liable with Metropolitan Waterworks and Sewerage System for the total amount of PhP 921,464,184.00 covering the period starting from May 7, 2009 to the date of promulgation of this Decision;
3. Petitioners shall pay the fines within fifteen (15) days from finality of this Decision;
4. Thereafter, from finality of this Decision until petitioners shall have fully paid the amounts stated in paragraphs 1 and 2, petitioners shall be fined in the initial amount of PhP 322,102.00 a day, subject to a further 10% increase every two years as provided under Section 28 of the Philippine Clean Water Act, until full compliance with Section 8 of the same law; and
5. The total amount of the fines imposed herein shall likewise earn legal interest of six percent (6%) per annum from finality and until full satisfaction thereof.
| || |
Very truly yours,
(SGD) EDGAR O. ARICHETA
Clerk of Court
Maynilad (West Zone Concession Area)
Manila Water (East Zone Concession Area)
Quezon City (part)
Quezon City (part)
Fine Per Day (In Pesos)
Fine Per Year (In Pesos)
May 7, 2009 to May 6, 2010
May 7, 2010 to May 6, 2011
May 7, 2011 to May 6, 2012
May 7, 2012 to May 6, 2013
May 7, 2013 to May 6, 2014
May 7, 2014 to May 6, 2015
May 7, 2015 to May 6, 2016
May 7, 2016 to May 6, 2017
May 7, 2017 to May 6, 2018
May 7, 2018 to May 6, 2019
May 7, 2019 to August 6, 2019
TOTAL FINES from MAY 7, 2009 to AUGUST 6, 2019
"Where is the ground that knows only the love of water? Where are the passageways to your heart?"I concur in the result in the first major En Banc ponencia of my esteemed colleague, Associate Justice Ramon Paul L. Hernando. Petitioners should be held liable for violating Section 8 of Republic Act No. 9275, or the Philippine Clean Water Act.Chingbot Cruz @conchitinabot Twitter, August 29, 2019
"How ashamed water is to be what you have made it."Chingbot Cruz @conchitinabot Twitter, August 28, 2019
SECTION 1. No person shall be deprived of life, liberty or property without due process of law, nor shall any person be denied the equal protection of the laws.In determining whether a person was accorded due process of law, the standard is to check if the restriction on the person's life, liberty, or property was consistent with fairness, reason, and justice, and free from caprice and arbitrariness. This standard applies to both procedural and substantive due process. In Legaspi v. Cebu City:
The guaranty of due process of law is a constitutional safeguard against any arbitrariness on the part of the Government, whether committed by the Legislature, the Executive, or the Judiciary. It is a protection essential to every inhabitant of the country, for, as a commentator on Constitutional Law has vividly written:The difference between substantive due process and procedural due process was discussed in White Light Corporation v. City of Manila. Procedural due process refers to the manner in which the deprivation of life, liberty, or property was executed. The question to be asked is whether the person was given sufficient notice and an opportunity to be heard. Substantive due process, on the other hand, pertains to the reason and justification for the denial or restriction on life, liberty, or property. It raises the question of whether such was necessary and fair to all parties involved. In White Light Corporation:. . . If the law itself unreasonably deprives a person of his life, liberty, or property, he is denied the protection of due process. If the enjoyment of his rights is conditioned on an unreasonable requirement, due process is likewise violated. Whatsoever be the source of such rights, be it the Constitution itself or merely a statute, its unjustified withholding would also be a violation of due process. Any government act that militates against the ordinary norms of justice or fair play is considered an infraction of the great guaranty of due process; and this is true whether the denial involves violation merely of the procedure prescribed by the law or affects the very validity of the law itself. (Emphasis supplied, citations omitted)
The primary constitutional question that confronts us is one of due process, as guaranteed under Section 1, Article III of the Constitution. Due process evades a precise definition. The purpose of the guaranty is to prevent arbitrary governmental encroachment against the life, liberty and property of individuals. The due process guaranty serves as a protection against arbitrary regulation or seizure. Even corporations and partnerships are protected by the guaranty insofar as their property is concerned.In Associated Communications & Wireless Services, Ltd. v. Dumlao:
The due process guaranty has traditionally been interpreted as imposing two related but distinct restrictions on government, "procedural due process" and "substantive due process". Procedural due process refers to the procedures that the government must follow before it deprives a person of life, liberty, or property. Procedural due process concerns itself with government action adhering to the established process when it makes an intrusion into the private sphere. Examples range from the form of notice given to the level of formality of a hearing.
If due process were confined solely to its procedural aspects, there would arise absurd situation of arbitrary government action, provided the proper formalities are followed. Substantive due process completes the protection envisioned by the due process clause. It inquires whether the government has sufficient justification for depriving a person of life, liberty, or property. (Emphasis supplied, citations omitted)
In order to fall within the protection of this provision, two conditions must concur, namely, that there is a deprivation and that such deprivation is done without proper observance of due process. When one speaks of due process of law, a distinction must be made between matters of procedure and matters of substance. In essence, procedural due process "refers to the method or manner by which the law is enforced," while substantive due process "requires that the law itself, not merely the procedures by which the law would be enforced, is fair, reasonable, and just." (Emphasis supplied, citations omitted)Thus, substantive due process looks into the justness or fairness of the law. Jurisprudence has developed several tests to determine whether a law is fair or just, depending on the government act, the rights impeded by the act, and the means used by the government to perform the act. The tests are: (1) the rational basis test; (2) the heightened or immediate scrutiny test; and (3) the strict scrutiny test.
The general test of the validity of an ordinance on substantive due process grounds is best tested when assessed with the evolved footnote 4 test laid down by the U.S. Supreme Court in U.S. v. Carolene Products. Footnote 4 of the Carolene Products case acknowledged that the judiciary would defer to the legislature unless there is a discrimination against a "discrete and insular" minority or infringement of a "fundamental right". Consequently, two standards of judicial review were established: strict scrutiny for laws dealing with freedom of the mind or restricting the political process, and the rational basis standard of review for economic legislation.Thus, more than the law's intrinsic validity, substantive due process looks into the fairness and freedom from arbitrariness in its deprivation of life, liberty, or property. It should not refer to any other source of legitimacy or validity; otherwise, this Court intrudes into the realm of the political, which is beyond our constitutional competence.
A third standard, denominated as heightened or immediate scrutiny, was later adopted by the U.S. Supreme Court for evaluating classifications based on gender and legitimacy. Immediate scrutiny was adopted by the U.S. Supreme Court in Craig, after the Court declined to do so in Reed v. Reed. While the test may have first been articulated in equal protection analysis, it has in the United States since been applied in all substantive due process cases as well.
We ourselves have often applied the rational basis test mainly in analysis of equal protection challenges. Using the rational basis examination, laws or ordinances are upheld if they rationally further a legitimate governmental interest. Under intermediate review, governmental interest is extensively examined and the availability of less restrictive measures is considered. Applying strict scrutiny, the focus is on the presence of compelling, rather than substantial, governmental interest and on the absence of less restrictive means for achieving that interest.
In terms of judicial review of statutes or ordinances, strict scrutiny refers to the standard for determining the quality and the amount of governmental interest brought to justify the regulation of fundamental freedoms. Strict scrutiny is used today to test the validity of laws dealing with the regulation of speech, gender, or race as well as other fundamental rights as expansion from its earlier applications to equal protection. The United States Supreme Court has expanded the scope of strict scrutiny to protect fundamental rights such as suffrage, judicial access and interstate travel. (Emphasis supplied, citations omitted)
SECTION 1. The Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority emanates from them.In light of this principle, our Constitution expressly articulates in Article X, Section 1 of the Constitution that:
Public office is a public trust. Public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and lead modest lives.This provision echoes the fiduciary relation between the government and the sovereign. Public officials, as trustees, are expected to act with responsibility and accountability in favor of the beneficiary. As in this case, the beneficiary of this public trust are the people. The trustees are held to higher standards and are liable for violations of public trust. Their betrayal of public trust is even considered an impeachable offense, as provided m Article XI, Section 2 of the Constitution:
SECTION 2. The President, the Vice-President, the Members of the Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman may be removed from office, on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. All other public officers and employees may be removed from office as provided by law, but not by impeachment.While the State's relationship with its natural resources is not as expressly stated to be a public trust, it also flows from the fundamental nature of a constitutional republican state.
SECTION 1. The goals of the national economy are a more equitable distribution of opportunities, income, and wealth; a sustained increase in the amount of goods and services produced by the nation for the benefit of the people; and an expanding productivity as the key to raising the quality of life for all, especially the underprivileged.These constitutional provisions on the State's national patrimony and economy, on which the public trust doctrine is anchored, highlight that the common good, public interest, public welfare-the people-are of primary consideration.
. . . .
SECTION 2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State. With the exception of agricultural lands, all other natural resources shall not be alienated. The exploration, development, and utilization of natural resources shall be under the full control and supervision of the State. The State may directly undertake such activities, or it may enter into co-production, joint venture, or production-sharing agreements with Filipino citizens, or corporations or associations at least sixty per centum of whose capital is owned by such citizens. Such agreements may be for a period not exceeding twenty-five years, renewable for not more than twenty-five years, and under such terms and conditions as may be provided by law. In cases of water rights for irrigation, water supply, fisheries, or industrial uses other than the development of water power, beneficial use may be the measure and limit of the grant.
The State shall protect the nation's marine wealth in its archipelagic waters, territorial sea, and exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens.
The Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens, as well as cooperative fish farming, with priority to subsistence fishermen and fishworkers in rivers, lakes, bays, and lagoons.
The President may enter into agreements with foreign-owned corporations involving either technical or financial assistance for large-scale exploration, development, and utilization of minerals, petroleum, and other mineral oils according to the general terms and conditions provided by law, based on real contributions to the economic growth and general welfare of the country. In such agreements, the State shall promote the development and use of local scientific and technical resources.
. . . .
SECTION 3. Lands of the public domain are classified into agricultural, forest or timber, mineral lands, and national parks. Agricultural lands of the public domain may be further classified by law according to the uses which they may be devoted. Alienable lands of the public domain shall be limited to agricultural lands. Private corporations or associations may not hold such alienable lands of the public domain except by lease, for a period not exceeding twenty-five years, renewable for not more than twenty-five years, and not to exceed one thousand hectares in area. Citizens of the Philippines may lease not more than five hundred hectares, or acquire not more than twelve hectares thereof by purchase, homestead, or grant.
Taking into account the requirements of conservation, ecology, and development, and subject to the requirements of agrarian reform, the Congress shall determine, by law, the size of lands of the public domain which may be acquired, developed, held, or leased and the conditions therefor.
SECTION 4. The Congress shall, as soon as possible, determine by law the specific limits of forest lands and national parks, marking clearly their boundaries on the ground. Thereafter, such forest lands and national parks shall be conserved and may not be increased nor diminished, except by law. The Congress shall provide, for such period as it may determine, measures to prohibit logging in endangered forests and watershed areas.
SECTION 5. The State, subject to the provisions of this Constitution and national development policies and programs, shall protect the rights of indigenous cultural communities to their ancestral lands to ensure their economic, social, and cultural well-being.
The Congress may provide for the applicability of customary laws governing property rights or relations in determining the ownership and extent of ancestral domain.
SECTION 6. The use of property bears a social function, and all economic agents shall contribute to the common good. Individuals and private groups, including corporations, cooperatives, and similar collective organizations, shall have the right to own, establish, and operate economic enterprises, subject to the duty of the State to promote distributive justice and to intervene when the common good so demands.
. . . .
SECTION 10. The Congress shall, upon recommendation of the economic and planning agency, when the national interest dictates, reserve to citizens of the Philippines or to corporations or associations at least sixty per centum of whose capital is owned by such citizens, or such higher percentage as Congress may prescribe, certain areas of investments. The Congress shall enact measures that will encourage the formation and operation of enterprises whose capital is wholly owned by Filipinos.
In the grant of rights, privileges, and concessions covering the national economy and patrimony, the State shall give preference to qualified Filipinos.
The State shall regulate and exercise authority over foreign investments within its national jurisdiction and in accordance with its national goals and priorities.
SECTION 11. No franchise, certificate, or any other form of authorization for the operation of a public utility shall be granted except to citizens of the Philippines or to corporations or associations organized under the laws of the Philippines at least sixty per centum of whose capital is owned by such citizens, nor shall such franchise, certificate, or authorization be exclusive in character or for a longer period than fifty years. Neither shall any such franchise or right be granted except under the condition that it shall be subject to amendment, alteration, or repeal by the Congress when the common good so requires. The State shall encourage equity participation in public utilities by the general public. The participation of foreign investors in the governing body of any public utility enterprise shall be limited to their proportionate share in its capital, and all the executive and managing officers of such corporation or association must be citizens of the Philippines.
SECTION 12. The State shall promote the preferential use of Filipino labor, domestic materials and locally produced goods, and adopt measures that help make them competitive.
SECTION 13. The State shall pursue a trade policy that serves the general welfare and utilizes all forms and arrangements of exchange on the basis of equality and reciprocity.
SECTION 14. The sustained development of a reservoir of national talents consisting of Filipino scientists, entrepreneurs, professionals, managers, high-level technical manpower and skilled workers and craftsmen in all fields shall be promoted by the State. The State shall encourage appropriate technology and regulate its transfer for the national benefit.
The practice of all professions in the Philippines shall be limited to Filipino citizens, save in cases prescribed by law.
SECTION 15. The Congress shall create an agency to promote the viability and growth of cooperatives as instruments for social justice and economic development.
SECTION 16. The Congress shall not, except by general law, provide for the formation, organization, or regulation of private corporations. Government-owned or controlled corporations may be created or established by special charters in the interest of the common good and subject to the test of economic viability.
SECTION 17. In times of national emergency, when the public interest so requires, the State may, during the emergency and under reasonable terms prescribed by it, temporarily take over or direct the operation of any privately owned public utility or business affected with public interest.
SECTION 18. The State may, in the interest of national welfare or defense, establish and operate vital industries and, upon payment of just compensation, transfer to public ownership utilities and other private enterprises to be operated by the Government.
SECTION 19. The State shall regulate or prohibit monopolies when the public interest so requires. No combinations in restraint of trade or unfair competition shall be allowed.
. . . .
SECTION 22. Acts which circumvent or negate any of the provisions of this Article shall be considered inimical to the national interest and subject to criminal and civil sanctions, as may be provided by law. (Emphasis supplied)
The doctrine of parens patriae is of Anglo-American, common law origin. It was understood to have "emanate[d] from the right of the Crown to protect those of its subjects who were unable to protect themselves." It was the King's "royal prerogative" to "take responsibility for those without capacity to look after themselves." At its outset, parens patriae contemplated situations where vulnerable persons had no means to support or protect themselves. Given this, it was the duty of the State, as the ultimate guardian of the people, to safeguard its citizens' welfare.As to the protection of minors, I noted that under Article II, Section 12 of the 1987 Constitution, parents have the natural and primary right and duty to rear the youth. In this instance, thus, the parens patriae doctrine must take a step back in favor of the child's parents. The State acts as parens patriae in protection of minors only when there is a clear showing that they are neglected, abused, or exploited:
The doctrine became entrenched in the United States, even as it gained independence and developed its own legal tradition. In Late Corporation of Church of Jesus Christ v. United States, the United States Supreme Court explained parens patriae as a beneficent state power and not an arbitrary royal prerogative:This prerogative of parens patriae is inherent in the supreme power of every State, whether that power is lodged in a royal person or in the legislature, and has no affinity to those arbitrary powers which are sometimes exerted by irresponsible monarch to the great detriment of the people and the destruction of their liberties. On the contrary, it is a most beneficent function, and often necessary to be exercised in the interest of humanity, and for the prevention of injury to those who cannot protect themselves. . . .In the same case, the United States Supreme Court emphasized that the exercise of parens patriae applies "to the beneficiaries of charities, who are often incapable of vindicating their rights, and justly look for protection to the sovereign authority." It is from this reliance and expectation of the people that a state stands as "parent of the nation."
American colonial rule and the adoption of American legal traditions that it entailed facilitated our own jurisdiction's adoption of the doctrine of parens patriae. Originally, the doctrine was understood as "the inherent power and authority of the state to provide protection of the person and property of a person non sui juris." (Emphasis in the original, citations omitted)
The addition of the qualifier "primary" [in the provision] unequivocally attests to the constitutional intent to afford primacy and preeminence to parental responsibility. More plainly stated, the Constitution now recognizes the superiority of parental prerogative. It follows, then, that state interventions, which are tantamount to deviations from the preeminent and superior rights of parents, are permitted only in instances where the parents themselves have failed or have become incapable of performing their duties.I, thus, maintain my opinion that before the parens patriae doctrine may be properly applied, there must first be harm inflicted upon a person, and the subsequent inability of that person to protect him or herself. It may also only be applied if the matter is outside the scope of the powers, right, and duty of the person charged with protection, or if the latter is incapacitated or grossly deficient in fulfilling his or her duty. To apply it without these conditions is to grant an almost absolute power to the State, allowing it to arbitrarily exercise such power that might render the bestowed constitutional rights on another inutile. With due respect, the reference to the civil concept of parens patriae may not have been accurate.
. . . .
. . . Imbong v. Ochoa, a cased decided by this Court in 2014, unequivocally characterized parents' rights as being "superior" to the state:Section 12, Article II of the 1987 Constitution provides that the natural and primary right and duty of parents in the rearing of the youth for civic efficiency and development of moral character shall receive the support of the Government. Like the 1973 Constitution and the 1935 Constitution, the 1987 Constitution affirms the State recognition of the invaluable role of parents in preparing the youth to become productive members of society. Notably, it places more importance on the role of parents in the development of their children by recognizing that said role shall be "primary," that is, that the right of parents in upbringing the youth is superior to that of the State. . . .Thus, the State acts as parens patriae only when parents cannot fulfill their role, as in cases of neglect, abuse, or exploitation:
. . . .
As it stands, the doctrine of parens patriae is a mere substitute or supplement to parents' authority over their children. It operates only when parental authority is established to be absent or grossly deficient The wisdom underlying this doctrine considers the existence of harm and the subsequent inability of the person to protect himself or herself. This premise entails the incapacity of parents and/or legal guardians to protect a child.
To hold otherwise is to afford an overarching and almost absolute power to the State; to allow the Government to arbitrarily exercise its parens patriae power might as well render the superior Constitutional right of parents inutile.
More refined applications of this doctrine reflect this position. In these instances where the State exercised its powers over minors on account of parens patriae, it was only because the children were prejudiced and it was without subverting the authority of the parents themselves when they have not acted in manifest offense against the rights of their children. (Emphasis in the original, citations omitted)
SECTION 2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State. . .Since the 1987 Constitution limited the State's ownership to lands of public domain, not all lands are presumed public. They must be part of the public domain for the State to be deemed its owner.
We have also recognized that "time immemorial possession of land in the concept of ownership either through themselves or through their predecessors in interest" suffices to create a presumption that such lands "have been held in the same way from before the Spanish conquest, and never to have been public land." This is an interpretation in Cariño v. Insular Government of the earlier version of Article III, Section 1 in the McKinley's Instructions. The case clarified that the Spanish sovereign's concept of the "regalian doctrine" did not extend to the American colonial period and to the various Organic Acts extended to the Philippines.The regalian doctrine emphasizes the State's ownership of all lands, irrespective of their ecology and the people who occupy them. The State acts as owner, exercising all rights of ownership over it, including the jus possidendi (right to possess), jus utendi (right to use), jus fruendi (right to its fruits), jus abutendi (right to consume), and jus disponendi (right to dispose). Cariño clarified, however, that after the Spanish occupation, all properties and rights of the State are now "to be administered for the benefit of the inhabitants[.]
Thus, in Cariño:It is true that Spain, in its earlier decrees, embodied the universal feudal theory that all lands were held from the Crown. . . It is true also that, in legal theory, sovereignty is absolute, and that, as against foreign nations, the United States may assert, as Spain asserted, absolute power. But it does not follow that, as against the inhabitants of the Philippines, the United States asserts that Spain had such power. When theory is left on one side, sovereignty is a question of strength, and may vary in degree. How far a new sovereign shall insist upon the theoretical relation of the subjects to the head in the past, and how far it shall recognize actual facts, are matters for it to decide.. . . .
Whatever may have been the technical position of Spain, it does not follow that, in view of the United States, [plaintiff who held the land as owner] had lost all rights and was a mere trespasser when the present government seized the land. The argument to that effect seems to amount to a denial of native titles throughout an important past of Luzon, at least, for the want of ceremonies which the Spaniards would not have permitted and had not the power to enforce.
No one, we suppose, would deny that, so far as consistent with paramount necessities, our first object in the internal administration of the islands is to do justice to the natives, not to exploit their country for private gain. By the Organic Act of July 1, 1902, c. 1369, A§ 12, 32 Stat. 691, all the property and rights acquired there by the United States are to be administered 'for the benefit of the inhabitants thereof.'. . .
Cariño is often misinterpreted to cover only lands for those considered today as part of indigenous cultural communities. However, nothing in its provisions limits it to that kind of application. We could also easily see that the progression of various provisions on completion of imperfect titles in earlier laws were efforts to assist in the recognition of these rights. In my view, these statutory attempts should never be interpreted as efforts to limit what has already been substantially recognized through constitutional interpretation.
There are also other provisions in our Constitution which protect the unique rights of indigenous peoples. This is in addition to our pronouncements interpreting "property" in the due process clause through Cariño.
It is time that we put our invocations of the "regalian doctrine" in its proper perspective. This will later on, in the proper case, translate into practical consequences that do justice to our people and our history. (Emphasis supplied, citations omitted)
The public trust doctrine, viewed in this light, is a communitarian doctrine, protecting the broader and longer-term community interests against private exploitation that eventually can destroy both the community and the exploiters. . . . [U]nder the public trust doctrine . . . individual members of a community may have to endure shorter-term pain in order to ensure that both they and, more importantly, the community as a whole avoid long-term diminishment or disaster.Nothing in the public trust doctrine sets the government apart from communities or individuals to be the sole repository of that trust Indeed, as a democracy, and in recognition of the reality that we are all beings that depend on each other and on the web of life in this pale blue dot in a vast universe, we are all both trustees and beneficiaries of all natural resources, especially its waters-without which we will cease to exist.