The Symposium Organizers Fellow Judges From Across Asia Ladies and Gentlemen:

Good morning.

It is a distinct honor to have been invited to participate and speak

before this symposium on Environmental Decision-Making, the Rule of Law

and Environmental Justice. I have been asked to discuss and share some

insights on the topic: the Manila Bay Case – the Writ of Continuing

Mandamus, subject of a 2008 ruling of the Philippine Supreme Court in

Metropolitan Manila Development Authority v. Concerned Residents of

Manila Bay in which I was privileged to write the court’s opinion.

Our Manila Bay is a vast body of water with a surface area of about

1,800 square kilometers. Once brimming with marine life and a spot for

different contact sports, Manila Bay is now a polluted expanse. So the

question is: what has happened during the interim? From my perspective,

the causes of this unfortunate development are many and varied. Foremost

of these are years of deplorable neglect by, if not abject indifference of, the

citizenry and government institutions, when they could have minimized, if

not stopped the damage.

While several laws have been enacted therein defining the functions

and responsibilities of government agencies with respect to keeping a

wholesome environment, the Manila Bay waters have remained polluted.

Then came the Manila Bay case, a suit commenced against eleven (11)

executive government departments and agencies for their failure to perform

their tasks as exacted by the nature of their respective offices and statutory-

mandated duties. As main relief, the plaintiffs prayed that the defendant-

agencies be ordered to clean-up and rehabilitate the bay pursuant to a

concerted plan of action and restore its waters to class “B” level, meaning to

make it fit for swimming and other forms of contact recreation.

The trial court and later the Court of Appeals found for the plaintiffs,

the defendant-agencies being enjoined to clean up and rehabilitate the bay in

accordance with a consolidated and concerted action plan. The case reached

the Supreme Court on appeal on the issue, among others, of the propriety of

a mandamus to compel performance by government agencies of official

duties. By a unanimous Decision, the en banc Court not only upheld the

appealed decision, but also took further steps. These extra steps, some would

say, partook of an exercise of judicial activism, for they tend to encroach on

the prerogatives of the executive department as implementor of

environmental laws.

Of course this is patently incorrect. The dispositions in the Manila

Bay case are simply the result of the exercise by the Supreme Court of its

power of judicial review over a case, although it incidentally affected certain

government agencies made parties to the case. It was the Court’s sentiment,

so I believe, that the daunting challenge in environmental rehabilitation and

protection that is Manila Bay needed a more comprehensive but doable

solution. But most of all, it was felt that a monitoring mechanism be put in

place if the short-term goal of cleaning up the bay is to succeed. Thus, the

adoption of the continuing mandamus principle, a concept that, per our study

and as our Manila Bay Decision indicates, traces its origin to decisional laws

of India. In M.C. Mehra v. Union of India, 1 the Supreme Court of India

issued this novel writ to enjoin certain tanneries along the Ganges River

from releasing into the river untreated effluents. Other relief granted

included ordering tanneries to keep their primary treatment plants in

working condition or to put up such treatment plants within a given deadline

or cease operation altogether. The orders were to be enforced by the

1 M.C. Metha v. Union of India, 4 SCC 463 (1987).

appropriate government agency. The nature of that case required the court to

continously monitor compliance with its orders.

The Manila Bay case clearly involves the implementation of

elaborate sequential activities on environment and sanitation matters with a

lengthy time frame. It was in this context that the Supreme Court resorted to

the process of continuing mandamus. The Decision in the Manila Bay case

required several government agencies to undertake specific, if not

overlapping, activities and projects set out in some detail in Operational

Plan for Manila Bay Coastal Strategy to provide long-term solutions to

address Manila Bay’s pollution. To ensure then that the Decision shall not be

put to naught by bureaucratic administrative indifference or inaction, the

Court has directed the heads of the agencies concerned to submit, under a

continuing open-ended arrangement, a periodic progressive report of the

activities each has taken in the implementation and compliance of the

decision. As may perhaps be observed, the edict for the preservation of the

water quality of the bay, after its clean up, has in effect, an unlimited

lifespan and validity.

Kindly note that the compliance report is required to be submitted

directly to the Supreme Court. In net effect, the Court has transformed itself

into a monitoring and implementing body, assuming the responsibility of

seeing to it that its disposition is faithfully enforced. Ordinarily, the trial

court of origin issues the writ to execute a judgment and the sheriff

implements and makes a return of the writ. By resorting to continuing

mandamus, the Supreme Court effectively took over from the trial court the

execution of the Decision in the Manila Bay case, thus excepting the

execution process from the operation of the Rules of Civil Procedure that the

Court promulgated pursuant to its constitutional rule-making power.

Please note too that under the same procedural rules, a final and

executory judgment may be executed either by motion within five (5) years

from date of its entry or by independent action, if the five-year period has

expired but within a period of ten (10) years from the time the judgment

became final. By practice, the winning party must ask the court to execute a

decision within ten (10) years. In the Manila Bay case, however, the

execution of the Court’s decision is, under the continuing mandamus

scheme, not time bound. In fine, the responsibility of those concerned in the

cleaning-up, the rehabilitation and preservation of the Manila Bay and all

corollary activities towards that end is not circumscribed by the five and ten-

year threshold adverted to. As long as something remains to be done in

terms of cleaning, rehabilitating and preserving the bay, the Manila Bay case

is, for all intents and purposes, still open and the mandamus therein decreed

continues to be in effect.

It is perhaps no exaggeration to say that the execution of the Manila

Bay Decision will outlive the incumbent members of the Supreme Court. As

couched, the Decision with its continuing mandamus component may very

well be treated as a perpetual edict. Remember that the Manila Bay case is

about protecting and keeping Manila Bay clean.

Just like the traditional mandamus available under Rule 65 of the

Philippine Rules of Court, the writ of continuing mandamus only lies to

compel the execution of a ministerial duty. A ministerial duty is one that

requires neither the exercise of official discretion nor judgment. It connotes

an act in which nothing is left to the discretion of the person executing it. It

is a “simple, definite duty arising under conditions admitted or proved to

exist and imposed by law.” 2 Mandamus is available to compel action, when

refused, on matters involving discretion, but not to direct the exercise of

judgement or discretion one way or the other.3

2 MMDA v. Concrned Residents of Manila Bay, G.R. No. 171947-78,574 SCRA 661,670-671. 3 Ibid.

In practical terms, the writ of continuing mandamus is really a

convenient tool enabling the court to effectively exact, and keep track of,

compliance of its orders. In this regard, and for purpose of monitoring the

performance of the assigned tasks of defendant-agencies and to verify their

accomplishments, the Supreme Court has formed the Advisory Committee

on the implementation of the Manila Bay decision. As formed, the

committee’s recommendatory actions, if approved by the Supreme Court,

shall have the force and effect of the Court’s Resolution.

Presently chaired by this representation, the Committee had invited

and now counts as among its members4 experts on technical environmental

and marine matters so necessary in evaluating accomplishment reports.

The Committee has since buckled down to work and has in fact

painstakingly gone over reports submitted by the agencies concerned. It has

held regular quarterly meetings to discuss with heads of agencies the

implementation of the Court’s decision. I am happy to share that the

Committee just received the revised Operational Plan for Manila Bay

Coastal Strategy from the Environment Department will soon meet with

different stakeholders to draw a road map for a more effective

implementation of the decision.

The Committee has, to be sure, encountered difficulties. Technical

problem is one. The search for an able staff complement to compose the

technical working group who will verify and evaluate accomplishment

reports, especially in sanitation matters, has been trying. And for lack of

sufficient funds, the Committee is unable, as often as it wants to, to

undertake ocular inspections of the works decreed to be done on affected

establishments, rivers and waterways.

4 Former DENR Secretary Elisea Gozun, former DENR Undersecretary Dean Antonio La

Viña and former University of the Philippines Marine Science Institute Director Dr. Gil Jacinto

To digress a bit.

As a result of the Manila Bay case, the recently issued Rules of

Procedure for Environmental Cases has codified the Writ of Continuing

Mandamus as one of the critical principal remedies that may be sought in

environmental cases.5 As a special civil action, the Writ of Continuing

Mandamus may be availed of to require the performance of an act or a series

of acts decreed by final judgment which shall remain effective until

judgment is fully satisfied. As expressly stated in Section 1, Rule 8 of the

said Rules, the writ shall be issued only against a government agency or

instrumentality or officer thereof to perform its ministerial functions and

duties under existing laws in connection with the enforcement or violation of

an environment law or regulations. The prescription under the aforesaid

section is what differentiates the continuing mandamus issued under

Philippine setting and that under the cited Mehta case. In Mehta, the

continuing mandamus order was principally directed against private firms,

the tanneries to be precise.

Following are other features of the continuing mandamus scheme

under the Rules of Procedure for Environmental Case. The action for the

issuance of a writ of continuing mandamus may be filed with the Regional

Trial Court, the Court of Appeals or with the Supreme Court. And save for

the Supreme Court, no court can issue a temporary restraining order or

injunction against lawful government actions that enforce environmental

laws or prevent violations thereof.6 Payment of docket fees is not required

and this will hopefully provoke or encourage the filing of more

environmental cases. The petition for a writ of continuing mandamus, under

the Rules should be decided within six (6) months from date of filing.

5 A case involving the enforcement or violation of environmental and related laws, rules

and regulations, listed in but not limited to those mentioned in Sec. 1 of the Rules. 6 Sec. 10, Rule 2.

Under the Rules, a continuing mandamus petition permits the court to

retain post judgment jurisdiction to ensure the successful implementation of

the reliefs decreed under its decision. Towards this end, the court may, by a

directive to be included in the judgment, compel the submission of periodic

reports from the responding government agencies as well as avail of other

medium to monitor compliance with its decision.

With that, I end my presentation and I hope I was able to impart some

inportant lessons learned from the issuance and implementation of a writ of

continuing mandamus, Philippine style.

Thank you and a pleasant day to everyone.