8 minute read
The NIPAS Law and the Revised Forestry Code of the Philippines
comparative Legal Analysis of the NIPAS Law
Advertisement
The NIPAS Law and the Revised Forestry Code of the Philippines [Presidential Decree No. 705, as amended by P.D. No. 1559, P.D. No. 865, P.D. No. 1775, Batas Pambansa (B.P.) Blg. 701,B.P. Blg. 83, Republic Act (R.A.) No. 7161, Executive Order (E.O.) No. 277 and 83 O.G. No. 31]
The salient points of the Revised Forestry Code of the Philippines (RFCP)
n The State generally is the steward and, therefore, allocates and manages our mutual resources through the existing line agencies.
n Utilization of natural resources should benefit citizens of the country both of the present and future generations.
n Ecological, cultural and developmental considerations are taken into account in the utilization of our natural resources.
n The concept of “multiple use” of land is given emphasis.
n Rehabilitation of degraded ecosystems.
n Encouragement of wood processing and the gradual phase out of log exports.
n Socio-political dimensions of forestry (NGO’s, people’s organization and multisectoral participation).
n A system of protected areas was established and rights of the cultural minorities recognized. Assessment
Given these key features of the NIPAS Act and the RFCP, it can be seen that both contain some common objectives and programs, namely:
1. Social Forestry began to emerge and a new direction in forestry policy was set, such as, (a) due recognition of ancestral lands and rights (Section 13, NIPAS law) and (b) rights of possession which may include places of abode and worship, burial grounds, and old clearings (Section 3 (mm), Presidential Decree No. 389).
These are two milestone provisions which reinforced the existing social forestry program.
2. The rights of indigenous people to their ancestral lands were given importance by both laws. More than mere recognition, the NIPAS Act upheld the rights of these people, tenured migrants and other affected communities to participate in decision-making processes related to the management of the protected areas (Section 11, NIPAS law).
3. The role of the LGUs in both the
NIPAS Act and the RFCP as a result of the passage of the Philippine Local
Government Code (LGC) devolving central power and authority to LGUs has been significantly increased.
The implementation of community based forestry program is one of the responsibilities given to the local units from the central government. The
LGC elucidates the roles, functions, powers, and authorities of the LGUs in
Salient points of the Revised Forestry code of the Philippines (RFcP)
comparative Legal Analysis of the NIPAS Law
shaping the development template of their localities. Among others, the LGC explicitly mandates the LGUs to manage their natural resource endowments and perform the devolved functions of DENR in order to ensure the maintenance and protection of the environment’s integrity.
Areas of concern
Weaknesses and conflicts are present in both the NIPAS Act and the RFCP that hamper efficient and effective management of the PAs.
1. One weakness is found in the Declaration of Policy of the NIPAS Act, Section 2 (paragraph 3) which states that: “x x x
There is established a National Integrated
Protected Areas System (NIPAS), which shall encompass outstandingly remarkable areas and biologically important public lands that are habitats of rare and endangered species of plants and animals, biogeographic zones and related ecosystems, whether terrestrial, wetland or marine, all of which shall be designated as “protected areas”. On the other hand, Presidential
Decree No. 705 contradicts Republic Act
No. 7586 by way of its policy statement under Section 2 [subsections (a),(b), (c), and (d)] which provides that the
State shall adopt the following policies: (a) the multiple uses of forest lands shall be oriented to the development and progress requirements of the country, the advancement of science and technology, and the public welfare; (b) land classification and survey shall be systematized and hastened; (c) the establishment of wood-processing plants shall be encouraged and rationalized; and (d) the protection, development and rehabilitation of forest lands shall be emphasized so as to ensure their continuity in productive condition. The NIPAS law seeks protection of biologically important public lands, including terrestrial and forest areas, while the RFCP allows, even encourages utilization, exploitation, and commercial production and consumption of forest areas and resources.
2. A deeper analysis of the current process of NIPAS and RFCP policy formation reveals major concerns, namely, the challenge of building consensus among the different policy makers, the need to put more emphasis on monitoring and evaluation of existing policies rather than simply focusing on policy formulation, such as in Section 11 (a) to (d) of the
NIPAS Act.
3. The RFCP focuses on industrial development and regulation as shown in Sections 2, 19, 22, 29, and 30 of
PD 389, while NIPAS Act focuses on resource preservation (Sections 2, 3 and 5, NIPAS law), causing conflicts that may diminish the overall success of various government programs.
4. In the NIPAS Act, the diversity of stakeholders involved in policy formulation gives rise to a wide range of interest and perspectives which make consensus-building a difficult task as revealed in Section 11 of the NIPAS law [subsections (a) to (d)].
comparative Legal Analysis of the NIPAS Law
5. The NIPAS Act has inadequate systems for financial planning, budgetary management and revenue generation limit long-term solution for PAs.
The establishment and operational disbursement of the IPAF is inefficient under Section 16 (a) to (d) and raises several issues as to the bureaucratic process of assessing funds, retention of
PA sub-fund at site, retention of the whole IPAF for the PA, sharing with
LGU’s, use of IPAF for livelihood of local communities and tenured migrants, and guidelines on the acceptance and use of donations and grants.
6. The coverage of resource use rights and tenure instruments is still wanting under the NIPAS Act considering that issues relating to who has the authority to issue the use right in PA whether PAMB or
PASu. Current practice would depend on the users, levels of authority, types of resource use, size, sites, and impacts of the proposed use. There is no difference between individual or community tenured migrants under the NIPAS Act.
Overlapping between PA and ancestral domain and limitations of funds for management must also be considered in the NIPAS Act.
7. Under Section 2 of the NIPAS Act the policy of the law is the establishment of a comprehensive system of integrated protected areas within the classification of national park as provided for in the
Constitution. However, the constitutional classification of “National Park” is an ambiguous term. Historically the legal term “national park” as it is now understood, was defined under PD 705 (enacted in 1975) as a forest land reservation. Being a forest land reservation, national parks were still within the ambit of the term “forest lands” as defined under PD 705.
When the 1987 Constitution became effective, “national park” became a constitutional land classification all on its own. When the NIPAS Act became effective in 1992, Protected Areas were deemed classified under the “national park” constitutional category. However, the NIPAS Law itself did not have an operational definition of the constitutional land classification of “national park”. In fact, the NIPAS Law retained the definition of “national park” under PD 705 as being a forest reservation. Since a “national park” is a forest reservation, and a forest reservation is forest land, then protected areas which are classified under national park, is essentially forest land. This, of course, may be academic and is clearly not the case. However, the above analysis only serves to show the need to have an operational definition of “national park” as a constitutional land classification and not as a mere forest reservation as it now stands.
And if only to dramatize this point, some queries may be raised: Are the provisions of PD 705 applicable in forest lands declared as protected areas? If an act performed inside a forest land that has been declared as a PA constitutes an offense under both PD 705 and RA 7586 or the NIPAS Act, which law prevails? What about acts that constitute an offense under PD 705, but not under RA 7586, such as unauthorized surveys of
comparative Legal Analysis of the NIPAS Law
forest lands, or pasturing livestock inside forest lands? Will these acts inside protected areas be punished under PD 705? What about the matter of penalties, considering that the penalties for the same offenses vary under PD 705 and RA 7586? Needless to say, the established principle in law is that ambiguities and doubts are construed strictly against the government and liberally in favor of the accused. There is ambiguity when the act falls under more than one law or when the law is susceptible to more than one interpretation (U.S. vs. Abad Santos, 36 Phil. 243; Suy Sui vs The People of the Philippines, G.R. No. L-5278, February 17, 1953).
The recent enactment of Republic Act No. 9486, otherwise known as the Central Cebu Protected Landscape Act of 2007, does not seem to help clarify the confusion. RA 9486 defines “National Park” in a manner that is already known. It says that National Park shall refer to “land of the public domain classified as such in the 1987 Constitution x x x” which is merely a repetition of what the Constitution already says. RA 9486 further provides that National Park “x x x includes all areas under the NIPAS pursuant to Republic Act No. 7586 primarily designated for the conservation of native plants and animals, their associated habitats and cultural diversity”, which is a repetition of what the NIPAS law states. Thus, the queries presented remain unanswered.
