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
1
of India. In M.C. Mehra v. Union of India, 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.