SC junks motion seeking higher fine for Tubbataha damage

Edu Punay - The Philippine Star

MANILA, Philippines - The Supreme Court has ruled that it has no jurisdiction on a petition seeking a higher fine on the US government and the criminal prosecution of US Navy officers for the damage caused to Tubbataha Reef by US minesweeper USS Guardian last year.

US Seventh Fleet commander Scott Swift, Guardian commanding officer Mark Rice and US Marine Corps Forces commander for the Pacific region Lt. Gen. Terry Robling did not submit any answer or manifestation on the writ of Kalikasan petition despite an SC notice sent to the US embassy in Manila in June last year.

In unanimously dismissing the petition against Swift,   Rice and Robling, the justices invoked the principle of state immunity from suit, as the case would be “one against the US itself.”

“The conduct of the US, in this case, when its warship had entered a restricted area in violation of Republic Act 10067 (Tubbataha Reefs Natural Park Act of 2009) and caused damage to the Tubbataha reef system, brings the matter within the ambit of Article 31 of the United Nations Convention on the Law of the Sea (UNCLOS),” read the SC decision.

The SC also did not give credence to the claim of petitioners of a waiver of immunity from suit on the part of the US Navy officers under the Visiting Forces Agreement (VFA).

The waiver under the VFA pertains only to criminal jurisdiction, not to special civil actions like the petition for a writ of Kalikasan, the SC added.

Application of criminal jurisdiction on the respondents “would be premature and beyond the  province of the writ of Kalikasan,” the SC said.

However, the SC said the US must not disregard the rights of the Philippines as a coastal state, although it is not a member of UNCLOS.

It expected the US will bear “international responsibility” under UNCLOS, the SC added.

The SC said UNCLOS “upholds the immunity of warships from the jurisdiction of coastal states while navigating their territorial sea.”

“The flag state 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,” read the SC decision.

The SC refused to grant damages sought in the petition, as the collection of fines under Republic Act 10067 must be made in a separate civil suit.

It deferred to the executive branch the matter of compensation and rehabilitation measures through diplomatic channels.

The SC also declined to review the VFA and void certain provisions as sought by petitioner.

It agreed with the Office of the Solicitor General (OSG) that the writ of Kalikasan is not the proper remedy to assail the constitutionality of the VFA and its provisions.

Associate Justice Martin Villarama wrote the decision.

Chief Justice Ma. Lourdes Sereno and 12 other justices concurred.

Associate Justices Jose Mendoza and Francis Jardeleza took no part in the voting.

Mendoza was on leave, while Jardeleza inhibited since he was the solicitor general that represented the government in answering the petition.

The petitioners were Bishop Arigo of Puerto Princesa, Palawan; Bishop Deogracias Iniguez Jr., bishop-emeritus of Caloocan; Frances Quimpo, Clemente Bautista Jr. of Kalikasan-Pne; Maria Carolina Araullo and Renato Reyes Jr. of Bagong Alyansang Makabayan (Bayan); Bayan Muna Rep. Neri Colmenares; Roland Simbulan of Junk VFA Movement; Teresita Perez; Kabataan party-list Rep. Raymond Palatino; Peter Gonzales of Pamalakaya; Giovanni Tapang, Agham; Elmer Labog, Kilusang Mayo Uno; Joan May Salvador, Gabriela; Jose Enrique Africa; Theresa Concepcion; Mary Joan Guan; Nestor Baguinon, and public interest lawyer Edsel Tupaz.

On Jan. 17 last year, the USS Guardian ran aground at Tubbataha Reef, destroying at least 2,346 square meters of pristine and highly diverse coral ecosystems.

In an investigation report dated May 22, 2013, the US Navy admitted the incident was caused by human error and failure of command of the USS Guardian.

‘Decision to affect compensation’

Senate committee on environment and natural resources chairman Loren Legarda believes the SC decision will affect the $1.5-million compensation to the Philippines.

“It’s up to the Department of Foreign Affairs (DFA), they already have the figure for the compensation,” she said. “I have to ask the DFA whether they have formally asked for compensation. I am not certain whether this has any bearing on the SC case.

“But definitely, compensation must be given the soonest possible time and it’s not just for the US, but China as well. For China, it was a private firm. The Philippine government should start compelling the Chinese government.” 

During the budget hearings last week of the Department of Environment and Natural Resources (DENR), Legarda urged Secretary Ramon Paje to follow up the collection of the $1.5-million fine.

Paje said the government – through the DFA – has billed the US government $1.5 million.

“It is already official and we have commuted it to the DFA,” he said.

They are awaiting the DFA’s swift action on the matter, he added.

Legarda wants updates on the Tubbataha compensation cases when DFA officials and members of the Presidential Commission on the Visiting Forces Agreement appear before the Senate during deliberations on their  budgets.

Director Mundita Lim of the Biodiversity Management Bureau said the Philippines, through the DFA, could continue to negotiate for compensation from the US government. – With Christina Mendez, Rhodina Villanueva

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