Making government work for your money (Differentiating between ministerial and discretionary duties)

By Siesta-friendly

A recent (December 18, 2008 to be exact) Supreme Court decision to compel government authorities to clean up Manila Bay is worth discussing. See, its established doctrine that you can’t compel government officials (actually anybody with position but we’re focusing on government for this post) to do something if the act would require their discretion or judgment.

They can only be compelled if the act to be done is ministerial (i.e., not requiring discretion or judgment). This principle is the basis for Rule 65 Sec. 3 of the Revised Rules of Court, to wit:

“When any tribunal, corporation, board, officer or person unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station … and there is no other plain, speedy and adequate remedy … the person aggrieved thereby may file a verified petition … praying that judgment be rendered commanding the respondent … to do the act required to be done to protect the rights of the petitioner …”

It’s not that easy to compel authorities to do anything, especially if they’re not inclined to do so. And their usual defense naturally is that the act they’re being compelled to do requires judgment.

The Concerned Residents of Manila Bay vs. the government alphabets

Fortunately, the Concerned Residents of Manila Bay knew better when it came to the implementation of Presidential Decree No. (PD) 1152 (“The Philippine Environment Code”) and filed an action to compel, take this, the MWSS, LWUA (Local Water Utilities Administration), DENR, PPA (Philippine Port Authority), MMDA, DA, DBM, DPWH, DOH, DECS, PCG (Philippine Coast Guard), and the PNP Maritime Group to clean up Manila Bay. Whew.

The Concerned Residents alleged that “the water quality of the Manila Bay had fallen way below the allowable standards” set by PD 1152, due to:

“x x x [The] reckless, wholesale, accumulated and ongoing acts of omission or commission [of the defendants] resulting in the clear and present danger to public health and in the depletion and contamination of the marine life of Manila Bay, [for which reason] ALL defendants must be held jointly and/or solidarily liable and be collectively ordered to clean up Manila Bay and to restore its water quality to class B waters fit for swimming, skin-diving, and other forms of contact recreation.”

Nice.

However, the facts disclosed at trial are far from it, if not unnerving.

“Water samples collected from different beaches around the Manila Bay showed that the amount of fecal coliform content ranged from 50,000 to 80,000 most probable number (MPN)/ml when what DENR Administrative Order No. 34-90 prescribed as a safe level for bathing and other forms of contact recreational activities, or the “SB” level, is one not exceeding 200 MPN/100 ml.”

The RTC was convinced and ordered the alphabets, okay, agencies, jointly and solidarily, to clean up and rehabilitate Manila Bay and restore its waters to SB classification to make it fit for swimming, skin-diving and other forms of contact recreation. The agencies, with DENR as the lead agency, were directed, within 6 months, to act and perform their respective duties by devising a consolidated, coordinated and concerted scheme of action for the rehabilitation and restoration of the bay.

Sweet.

Sweeter still, the CA agreed.

Of course, the alphabets claimed they couldn’t be compelled to clear the murky soup that is the Manila Bay. And so they went to the Supreme Court to stay clear of the broth.

By the way, the complaint was filed in 1999. The RTC judgment was rendered and in 2002 and the CA’s in 2005. Just so you get a timeline.

Anyway, the agencies alleged that 1) PD 1152 only requires the cleaning of specified pollutants and not general cleaning; and in any case, 2) the cleaning of Manila Bay requires their discretion and, hence, they can’t be compelled to do so as it is not a ministerial act. The nerve.

Ministerial vs. Discretionary

Despite the agencies’ claims that their duties require policy evaluations and, of course, judgment and discretion, the Supreme Court held that under PD 1152, R.A. 9003 (Ecological Solid Waste Management Act), other laws and even their respective enabling statutes, the agencies are required “to perform certain functions relating directly or indirectly to the cleanup, rehabilitation, protection, and preservation of the Manila Bay.” This the SC noted from –

1. DENR’s obligations under EO 192 and RA9275 (Philippine Clean Water Act of 2004),
2. MWSS’s under its charter RA 6234,
3. LWUA’s under PD 198 (Provincial Water Utilities Act of 1973) and RA 9275,
4. DA’s under EO 292 (the Administrative Code of 1987), and also RA 9275,
5. DPWH’s also under EO 292 while MMDA’s under its charter RA 7924, and the MOA between the 2 delineating their responsibilities within Metro Manila and nationwide,
6. PCG’s under PD 601 (Revised Coast Guard Law of 1974) and of PD 979 (Marine Pollution Decree of 1976), RA 8550 (Philippine Fisheries Code of 1998),
7. PNP’s under RA 6975 (Department of the Interior and Local Government (DILG) Act of 1990),
8. PPA’s under EO 513 and the International Convention for the Prevention of Pollution from Ships,
9. MMDA’s under RA 9003, RA 7279 (Urban Development and Housing Act of 1992),
10. DOH’s under PD 1067 (Water Code), RA 9275 and PD 856 (Code of Sanitation of the Philippines), and
11. DBM’s under EO 292 and RA 9275.

Under the respective laws, the agencies are given responsibilities and cannot decide whether or not to perform them. Thus, the SC held that the Concerned Residents were right to ask that the agencies be compelled to accomplish their duties as they were obviously ministerial despite any judgment that may be exercised in the manner in which they are performed.

General Cleaning

The other issue is whether the agencies are obligated to do general cleaning (said the Concerned Residents) or just limited cleaning (said the agencies) of Manila Bay, i.e, whether or not PD 1152 or the Philippine Environment Code envisions the occurrence of specific incidents causing pollution before the government agencies are obligated to clean up.

The short answer is given by the CA, as quoted by the SC: “PD 1152 aims to introduce a comprehensive program of environmental protection and management. This is better served by making [the relevant provisions] of general application rather than limiting them to specific pollution incidents.”

And so, we have the landmark decision ordering -

1. the DENR act as the primary agency responsible for the conservation, management, development, and proper use of the country’s environment and natural resources, and directing it to fully implement its Operational Plan for the Manila Bay Coastal Strategy for the rehabilitation, restoration, and conservation of the Manila Bay at the earliest possible time.

2. the DILG to direct all concerned LGUs to inspect all factories, commercial establishments, and private homes along the banks of the major river systems in their respective areas of jurisdiction, such as but not limited to rivers and lakes and other minor rivers and waterways that eventually discharge water into the Manila Bay; and the lands abutting the bay, to determine whether they have wastewater treatment facilities or hygienic septic tanks as prescribed. If none be found, these LGUs shall be ordered to require non-complying establishments and homes to set up said facilities or septic tanks within a reasonable time to prevent industrial wastes, sewage water, and human wastes from flowing into these rivers, waterways, esteros, and the Manila Bay.

3. 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.

4. the LWUA to provide, install, operate, and maintain sewerage and sanitation facilities and the efficient and safe collection, treatment, and disposal of sewage in the provinces of Laguna, Cavite, Bulacan, Pampanga, and Bataan where needed at the earliest possible time.

5. the DA to improve and restore the marine life of the Manila Bay. It is also directed to assist the LGUs in Metro Manila, Rizal, Cavite, Laguna, Bulacan, Pampanga, and Bataan in developing, using recognized methods, the fisheries and aquatic resources in the Manila Bay.

6. the PCG and the PNP Maritime Group to apprehend violators of existing laws and regulations designed to prevent marine pollution in the Manila Bay.

7. the PPA to immediately adopt such measures to prevent the discharge and dumping of solid and liquid wastes and other ship-generated wastes into the Manila Bay waters from vessels docked at ports and apprehend the violators.

8. the MMDA to dismantle and remove all structures, constructions, and other encroachments established or built in violation of applicable laws along the Pasig-Marikina-San Juan Rivers, the NCR (Parañaque-Zapote, Las Piñas) Rivers, the Navotas-Malabon-Tullahan-Tenejeros Rivers, and connecting waterways and esteros in Metro Manila.

9. the DPWH to remove and demolish all structures, constructions, and other encroachments built in breach of applicable laws along the Meycauayan-Marilao-Obando (Bulacan) Rivers, the Talisay (Bataan) River, the Imus (Cavite) River, the Laguna De Bay, and other rivers, connecting waterways, and esteros that discharge wastewater into the Manila Bay.

10. the MMDA to establish, operate, and maintain a sanitary landfill, as prescribed by RA 9003, within 1 year from finality of this Decision. It is also ordered to cause the apprehension and filing of the appropriate criminal cases against violators of existing laws on pollution.

11. the DOH to, within 1 year from finality of this Decision, determine if all licensed septic and sludge companies have the proper facilities for the treatment and disposal of fecal sludge and sewage coming from septic tanks. The DOH shall give the companies, if found to be non-complying, a reasonable time within which to set up the necessary facilities under pain of cancellation of its environmental sanitation clearance.

12. the DepEd to integrate lessons on pollution prevention, waste management, environmental protection, and like subjects in the school curricula of all levels to inculcate in the minds and hearts of students and, through them, their parents and friends, the importance of their duty toward achieving and maintaining a balanced and healthful ecosystem in the entire Philippine archipelago.

13. the DBM to consider incorporating an adequate budget in the General Appropriations Act of 2010 and succeeding years to cover the expenses relating to the cleanup, restoration, and preservation of the water quality of the Manila Bay, in line with the country’s development objective to attain economic growth in a manner consistent with the protection, preservation, and revival of our marine waters.

14. the heads of petitioners-agencies MMDA, DENR, DepEd, DOH, DA, DPWH, DBM, PCG, PNP Maritime Group, DILG, and also of MWSS, LWUA, and PPA, in line with the principle of “continuing mandamus,” to, from finality of this Decision, each submit to the Court a quarterly progressive report of the activities undertaken in accordance with this Decision.

Gives you mixed feelings doesn’t it? Happy to have a very aggressive Supreme Court (or maybe Chief Justice) yet, sad and angry that government needs to be told their duties under the law.

Oh well, let’s just be grateful for the decision, and the vigilance of the Concerned Residents of Manila Bay.

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