The writ of kalikasan plea on the grounding of a US Navy minesweeper in the Tubbataha Reef in January 2013 might have been junked by the Supreme Court but the ruling has opened doors for a possible review of the doctrine of sovereign immunity as applied in the Philippines.
In a concurring opinion, SC Associate Justice Marvic Leonen emphasized the need in future cases to refine the scopes and limitations of the doctrine of sovereign immunity so those responsible for environment-related incidents like the grounding in the Tubbataha may be held liable.
"Our doctrine regarding sovereign immunity needs to be refined in the proper case with respect to its nature, source, and its limitations," Leonen said.
He said the high court can study refining the limits of the doctrine of sovereign immunity's application when determining jurisdictional immunities of foreign warships, "specifically when it violates domestic laws implementing international obligations even while on innocent passage."
The doctrine is currently understood as "a basic right extended to states by other states on the basis of respect for sovereignty and independence," said Leonen. In the 1987 Philippine Constitution, sovereign immunity is contained in Article XVI, Section 3, which provides that "[the] State may not be sued without its consent."
The Guardian grounding
The USS Guardian ran aground on Tubbataha Reef on January 17, 2013 but much of its potentially harmful content – including 15,000 gallons of fuel – were removed from the ship immediately. The ship was cut up and finally removed in late March of that year.
Leonen said that while states have agreed that sovereign immunity is legally binding, there is still a lack of international agreement on how it should be invoked and on the extent of the immunity in some cases.
"Those who have directly and actually committed culpable acts or acts resulting from gross negligence resulting in the grounding of a foreign warship in violation of our laws defining a tortious act or one that protects the environment which implement binding international obligations cannot claim sovereign immunity," Leonen said.
Leonen however said the Philippines has no law yet on the application of sovereign immunity in cases of damages or violations of domestic law involving agents of a foreign state. He, however, noted that Philippine laws "have openings to hold those who have committed an act ultra vires [beyond the powers of the entity] responsible in our domestic courts."
Leonen said that in the past, the SC had ruled that "tortious acts or crimes committed while discharging official functions are not covered by sovereign immunity."
He also noted that in a previous case, the court held American naval officers liable for damages in their personal capacities.
Petitioners had no legal standing
Leonen said the petitioners in the Tubbataha case have no legal standing since the law requires "that parties bringing the suit are sufficiently and substantially possessed of individual interest and capability so that they can properly shape the issues brought before this court."
As a result of the Tubbataha case, Leonen called for a review of the rule on class suits brought as representative suits mentioned in the SC's 1993 ruling in Oposa v. Factoran.
The rule "allows a nonrepresentative group to universally represent a whole population as well as an unborn generation binding them to causes of actions, arguments, and reliefs which they did not choose."
Leonen expressed fears that in the future, "generations yet unborn [will] suffer from the legal inability to assert against false representation."
He claimed that in environmental cases, "allowing anyone from the present generation to represent others who are yet unborn poses possible dangers... Decisions of this court will bind future generations."
Leonen said the current procedure on representative suits will "not only weaken the minors' and unborn's ability to decide for themselves but may have unforeseen and unintended detrimental effects on their interests."
In its ruling, the high court said the petitioners should have first exhausted political and administrative means before pursuing legal action.
The high court denied the plea for damages because the recovery of damages, including the collection of administrative fines under Republic Act 10067, should be made in a separate civil suit or one deemed instituted with any criminal action.
As to the compensation and rehabilitation measures through diplomatic channels, the high court deferred to the executive department.
Leonen said had the case regarding the Tubbataha grounding been brought in a "timely manner, with the proper remedy, and in the proper court," sovereign immunity can be made not to apply to all the foreign respondents in the petition.
SC no 'environmental super body'
Leonen also said that the writ of kalikasan should not be abused, nor should the high tribunal be converted into an "environmental super body."
"The writ of kalikasan is not an all-embracing legal remedy to be wielded like a political tool... Abuse of our [legal] procedures contributes to the debasement of the proper function of the remedies and invites inordinate interference from this court from what may be technical and political decisions that must be made in a different forum," said Leonen.
"(Also) Our sympathy for environmental concerns never justifies our conversion to an environmental super body," the magistrate added.
Leonen, a known environmentalist prior to being a Supreme Court Justice, co-founded the Legal Rights and Natural Resources Center Inc.-Kasama sa Kalikasan (LRCKSK-Friends of the Earth Philippines), a legal and policy research institution advocating the rights of long term upland communities.
http://www.gmanetwork.com/news/story/381398/news/nation/after-uss-guardian-case-sc-justice-sees-need-to-refine-sovereign-immunity-doctrine
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