THE NIPAS LAW AND CONSTITUTIONAL ISSUES

Environmental law in the Philippines is still in its initial stages. Though a number of laws have already been passed to protect the environment and address related issues, there is an acute problem in the implementation of laws. Part of the problem is due to the fact that some of our environmental laws are not well crafted. This is understandable since environmental legislation is still an emerging trend in the Philippines. People are just beginning to listen with the recent natural disasters and the threat of global warming. But a lot of change has occurred since 1992; thus, there is a need to review the NIPAS and related laws to reflect and address these changes.

The NIPAS Act was passed pursuant to the Constitutional mandate of protection and conservation of the environment. Under Section 3, Article XII of the 1987 Philippine Constitution, lands of public domain are classified into four categories: agricultural, forest or timber, mineral lands, and national parks. The NIPAS law provides the legal framework for the establishment and administration of a comprehensive system of integrated protected areas within the classification of national park as provided in the Constitution.2

Section 4 of Article XII on National Economy and Patrimony provides that Congress shall as soon as possible determine by law the specific limits of forests lands and national parks, marking clearly their boundaries on the ground. Thereafter, such forest lands and national parks shall be conserved and may not be increased nor diminished except by law. Therefore, Congress is mandated by the Constitution to enact laws which are aimed at the preservation and conservation of forest lands and national parks.

The NIPAS Act further categorizes protected areas into strict nature reserve, natural park, natural monument, wildlife sanctuary, protected landscapes and seascapes, resource reserve, natural biotic areas and other categories established by law, conventions, or international agreements which the Philippine government is a signatory.

Under the law, all areas or islands in the Philippines proclaimed, designated or set aside, pursuant to a law, presidential decree, presidential proclamation or executive order as national park, game refuge, bird and wildlife sanctuary, wilderness area, strict nature reserve, watershed, mangrove reserve, fish sanctuary, natural and historical landmark, protected and managed landscape/seascape as well as identified virgin forests before the effectivity of the Act are to be designated as initial components of the System.3 Additional areas with outstanding physical features, anthropological significance and biological diversity may also be included in the system.4

There were 202 identified initial components of the NIPAS comprising of proclaimed national parks, game refuge and wildlife sanctuaries, nature reserves, wilderness areas, mangrove reserves, watershed reservations, fish sanctuaries, protected landscapes and seascapes,

2Section 2, NIPAS 3Section 5(a) NIPAS 4Section 6, Ibid

The NIPAS Law and constitutional Issues

among others. Thus far, of the 202 initial components, there are one hundred twelve (112) protected areas formally proclaimed by the President under the System covering 3.54 million hectares. However, only 13 protected areas have been officially declared by law as part of the NIPAS.5

Section 7 of the law also provides for the disestablishment or withdrawal of a PA from such category or for the modification of an area’s boundaries as warranted by a study and with sanction from the PAMB. The provision also mandates that the disestablishment of a PA under the System or modification of its boundary shall take effect pursuant to an act of Congress.

Analysis

The NIPAS Act does not create a new category of land in addition to those specified in the Constitution. A closer look into the history of constitutional land classification reveals this. The 1935 constitution did not contain a specific provision classifying lands of public domain but Art. XIII mentioned agricultural, timber and mineral lands.

In the 1973 constitution, land of the public domain was classified into seven separate categories: agricultural, industrial or commercial, residential, resettlement, mineral, timber or forest, and grazing land, and authorized the Batasang Pambansa to make other classifications. Again there is no mention of national park.

Only the 1987 constitution returned the classification of 1935 – agricultural, forest or timber and mineral – and added “national parks” in its classification.

The Philippines had a national parks law as early as 1932. In 1 February 1932, Act No. 3915, “An Act Providing for the Establishment of National Parks, Declaring such Parks as Game Refuges and for Other Purposes”, was enacted. It defines National parks as “Areas of the public domain, which because of their panoramic, historical, scientific or aesthetic value, should be dedicated and set apart as a national parks for the benefit and enjoyment of the people of the Philippine Islands”.

A more contemporary definition of national parks is given in the Revised Forestry Code, Presidential Decree No. 705 dated 19 May 1975, as "a forest land reservation essentially of primitive or wilderness character which has been withdrawn from settlement or occupancy and set aside as such exclusively to preserve the scenery, the natural and historic objects and the wild animals or plants therein, and to provide enjoyment of these features in such a manner as will leave them unimpaired for future generations".

Forest Administrative Order No. 7 identifies the purpose of national parks as to: preserve panoramic, scenic or aesthetic interest; provide for recreation; and to preserve flora and fauna, geological features, historic or prehistoric remains and any other feature of scientific or ethnological interest. However, neither a precise definition of national parks, nor specific criteria for selecting areas for national park status is given. In view of the NIPAS act, from the

5www.chm.ph/index.php?option=com_content&vi ew=article&id=104%3Anipas&catid=40%3Acrosscutting-issues&Itemid=146 last accessed July 04, 2011

The NIPAS Law and constitutional Issues

standpoint of the classification of public lands, it is said that the terms ‘protected area’ and ‘national park’ are synonymous.

The NIPAS Law does not create a new land classification apart from that already provided under the 1987 Constitution, but merely seeks the declaration of certain lands with outstanding remarkable areas and biologically important public lands that are habitats of rare and endangered species of plants and animals, biogeographic zones and related ecosystems into ‘protected areas’ so they can be included in the national integrated protected areas system for their more efficient conservation and management. This declaration in turn puts the declared area (by official legislation) within the ambit of the Constitutional land classification of National Parks.

One area for concern in the NIPAS law is the wide latitude of discretion given to the DENR secretary as regards the issuance of permits for certain activities inside the protected area. Section 20 of the NIPAS Act prohibits hunting, destroying, disturbing, or mere possession of any plants or animals or products derived therefrom, use of any motorized equipment, constructing or maintaining any kind of structure, fence or enclosures, conducting any business enterprise without a permit. This necessarily means that these acts are not prohibited if with permit. The law does not provide for guidelines for the administrative exercise of discretion to issue permits. Hence, the law can be perceived as vague and an undue delegation of powers.

Another issue is Section 12 requiring an Environmental Impact Assessment (EIA). This provision of the NIPAS Act allows activities which are outside the scope of the management plan provided an EIA is conducted and the results are positive. The very purpose of a management strategy under Section 9 is to serve as a guide for the administration of the PA’s according to its unique characteristics. Why then should proposals for activities outside the scope of the management strategy be allowed?

Moreover, there is the opinion that the NIPAS Act can be challenged as being void on the ground of vagueness. This opinion states that the NIPAS Act, specifically the portion on prohibited acts (Section 20), lacks comprehensible standards which allow the people to necessarily guess at its meaning and differ as to its application. It is repugnant to the Constitution in two respects: (1) it violates due process for failure to accord persons, especially the parties targeted by it, fair notice of the conduct to avoid; and (2) it leaves law enforcers unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of the government muscle.

For instance, how can people know in advance what waste products are detrimental to the protected area? Clearly, the law does not punish the dumping of waste products per se, but only those waste products that are detrimental to the protected area. Moreover, destroying objects within a PA does not seem to be punishable by itself. What is punishable is to mutilate, deface or destroy objects of natural beauty, or objects of interest to cultural communities (of scenic value). Again, the NIPAS Act imposes no standard at all because one may never know in advance what is naturally beautiful

The NIPAS Law and constitutional Issues

or of scenic value to some people but is not so to others [See People vs. Nazario,165 SCRA 186 (1988), citing Connally vs. General Const. Co., 269 U.S. 385 (1926)].

In People v. Dela Piedra, 92 350 SCRA 163, the Philippine Supreme Court acknowledged the principle that the due process clause mandates that criminal laws must be clearly and certainly worded as to give fair notice and guide those who come within its coverage in planning their conduct so as to avoid its penalties, a principle that functions as one of the legal rationale of the vagueness doctrine. It held:

“Due process requires that the terms of a penal statute must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties. A criminal statute that “fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute,” or is so indefinite that “it encourages arbitrary and erratic arrests and convictions,” is void for vagueness. The constitutional vice in a vague or indefinite statute is the injustice to the accused in placing him on trial for an offense, the nature of which he is given no fair warning.”

It is doubtful whether subsequent implement rules could cure the vagueness in the statute.

There is a need to take a closer look into these seeming inconsistencies in the law to make a more reliable and sound piece of legislation. A law cannot be properly implemented if its provisions are vague or inconsistent with other laws and the Constitution. Recognizing the inherent flaws is a step closer to the achievement of enacting laws which are socially relevant and proactive.