Tuesday, September 16, 2014

SC junks petition for writ of Kalikasan on grounding of U.S. ship in Tubbataha reefs

From the Philippine News Agency (Sep 16): SC junks petition for writ of Kalikasan on grounding of U.S. ship in Tubbataha reefs

The Supreme Court (SC) dismissed on Tuesday the petition for writ of kalikasan filed in connection with the grounding of a United States naval ship that damaged the Tubbataha reefs in Palawan on Jan. 17, 2013.

”The Court, voting 13-0-2, in a Decision written by the Hon. Associate Justice Martin S. Villarama Jr., DENIED the petition for the issuance of the privilege of the writ of Kalikasan sought by the petitioners,” SC Public Information Office (PIO) Chief and Spokesman Atty. Theodore O. Te said in a press conference.

Associate Justice Jose Catral Mendoza was on sick leave while Associate Justice Francis H. Jardeleza inhibited from the voting because he was the Solicitor General when the case was filed before the SC.

The petitioners were Most Rev. Pedro Arigo, et al. and the respondents were Scott Swift, et al.

The petitioners claimed that the grounding, salvaging and post-salvaging operations of the USS Guardian caused and continue to cause environmental damage of such magnitude as to affect the provinces of Palawan, Antique, Aklan, Guimaras, Iloilo, Negros Occidental, Negros Oriental, Zamboanga del Norte, Basilan, Sulu and Tawi-Tawi, which violate their constitutional rights to a balanced and healthful ecology.

They also sought a directive from the SC for the institution of civil, administrative and criminal suits for acts committed in violation of environmental laws and regulations in connection with the grounding incident.

After upholding the standing of petitioners to sue, the SC addressed the question of its jurisdiction over the US respondents who did not submit any pleading or manifestation in this case.

The US respondents were sued in their official capacity as commanding officers of the US Navy who have control and supervision over the USS Guardian and its crew.

The SC found that since the satisfaction of any judgement against these officials would require remedial actions and the appropriation of funds by the US government, the suit is deemed to be one against the US itself.

”The Court ruled that the principle of State Immunity from suit bars the exercise of jurisdiction by this Court over the persons of Swift, Rice and Robling, all of whom are officers of the US Navy,” the SC said.

It also discussed and agreed with the position taken by Senior Associate Justice Antonio T. Carpio, during its deliberations, that “the conduct of the US, in this case, when its warship had entered a restricted area in violation of R.A. 10067 and caused damage to the TRNP reef system, brings the matter within the ambit of Article 31 of the United Nations Convention on the Law of the Sea (UNCLOS).”

The SC discussed extensively the nature of the UNCLOS and the legal implications of the US non-ratification of the UNCLOS.

It agreed with Carpio’s point that the US refusal to join the UNCLOS centered on its disagreement with the UNCLOS regime of deep seabed mining in Part XI, “which considers the seabed and oceans commonly owned by mankind but not with the US’ acceptance of customary international rules on navigation.”

"Thus, the US’ non-membership in the UNCLOS does not mean that the US will disregard the rights of the Philippines as a Coastal State over its internal waters and territorial sea," the SC said.

The SC said it expected the US to bear “international responsibility” under Article 31 in connection with the grounding of the USS Guardian which adversely affected the Tubbataha reefs.

It said the relevance of the UNCLOS provisions to the present controversy is beyond dispute and while the treaty upholds the immunity of warships from the jurisdiction of the Coastal States while navigating the latter’s territorial sea, the flag States shall be required to leave the territorial sea immediately if they flout the laws and regulations of the Coastal State and will be liable for damages caused by their warships or any other government vessel operated for non-commercial purposes under Article 31.

”The Court was not persuaded by the petitioners’ argument that there was a waiver of immunity from suit under the Visiting Forces Agreement (VFA) between the US and the Philippines as any waiver of State immunity under the VFA pertains only to criminal jurisdiction and not to special civil actions such as the present petition for the issuance of the writ of kalikasan,” the SC said.

The SC also found that a ruling on the application or non-application of criminal jurisdiction provisions of the VFA to US personnel who may be found responsible for the grounding of the USS Guardian would be premature and beyond the province of the writ of kalikasan.

It also declined to grant damages which have allegedly resulted from the violation of environmental laws because the rules on environmental protection and the writ of kalikasan expressly provide that the recovery of damages, including the collection of administrative fines under R.A. 10067, are to be made in a separate civil suit or that one deemed instituted with any criminal action.

On the matter of the compensation and rehabilitation measures through diplomatic channels, the SC deferred it to the Executive Branch.

It noted that the conduct of foreign relations of the government is committed by the Constitution to the political departments of the government and the propriety of what may be done in the exercise of this political power is not subject to judicial inquiry or decision.

The SC also declined to review the VFA and to nullify certain portions thereof.

It cited that the writ of kalikasan is not the proper remedy to assail the constitutionality of the VFA and its provisions.


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