Legal inesse

SEE Eco Cases..., page 4

QUARTERLY NEWSLETTER OF FORTUN NARVASA & SALAZA R • www.fnslaw.com.ph

APRIL — JUNE 2010

L E G A L F I N E S S E I 0 1

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Eco warriors now have additional legal

arsenal with the passage of the Rules of

Procedure for Environmental Cases last

April 2010. The inadequacy of the cur-

rent Rules of Court in providing speedy,

inexpensive and simplified enforcement

of legal rights and duties impelled the

Supreme Court to craft the Rules specifi-

cally for suits concerning the environ-

ment. Also, the High Court, mindful of

the new developments in jurisprudence

locally and abroad, introduced innovations and best prac-

tices ensuring the effective enforcement of remedies and

redress for violation of environmental laws. Here are the

new weapons for the eco warriors:

Writ of Kalikasan

Unlawful acts or omissions involving environmental damage of such

magnitude as to prejudice the life, health or property of inhabitants in two

or more cities or provinces can be stopped by the Supreme Court or Court

of Appeal through the issuance of a Writ of Kalikasan against the offender.

The higher courts are required issue the Writ within 3 days from filing of

the petition and to decide the petition within 60 days from the filing date.

Aside from restricting the offender from continuing with the unlawful act

or omission, the courts can grant the following reliefs:

1. Direct the offender to protect, preserve, rehabilitate or restore the

environment;

2. Direct the offender to monitor strict compliance with the court’s

order; or

3. Direct the offender to make periodic reports on the execution of

the judgment.

Individual damages, however, cannot be awarded to the petitioners. No

filing fees are required to be paid when the petition is filed.

Writ of Continuing Mandamus

When it is a government agency or officer neglecting the performance of

a legal act with the enforcement or violation of an environmental law and

monetary damages are sought, the aggrieved person can go to court to re-

quire the government agency or officer to act until the judgment is fully

satisfied and to be awarded damages. The courts should issue the Writ of

Continuing Mandamus within 10 days from filing and, similar to the Writ

of Kalikasan, resolve the petition within 60 days. The aggrieved person has

the option of filing the petition with the Regional Trial Court which has

jurisdiction over the territory where the actionable neglect or omission

occurred, or with the Supreme Court or Court of Appeals.

The court, in its judgment, may grant the privilege of the Writ of Con-

tinuing Mandamus directing the government agency or officer to perform

the acts until judgment is fully satisfied. Submission of periodic reports

detailing the progress and execution of the judgment may also be required

by the court. The aggrieved party may comment on the periodic reports

submitted.

Similar to the petition for a Writ of Kalikasan, no filing fees are required

in the filing of a petition for Writ of Continuing Mandamus.

Temporary Environmental Protection Order

A court may issue, without need of requiring the adverse party to be

heard, a Temporary Environmental Protection Order (TEPO) if it appears

from a complaint in an environment case complaint that the matter is of

extreme urgency and the applicant for the TEPO will suffer grave injustice

and irreparable injury. The TEPO will only be effective for 72 hours from

the date of receipt by the adverse party. During the same period, the court

shall conduct a summary hearing to determine whether the TEPO may be

extended until the termination of the case.

View of the smaller Lake Balinsasayaw in Negros Oriental, a protected area.

SC Issues New Rules for Eco

Cases

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0 2 I L E G A L F I N E S S E

The Implementing Rules and Regulations (IRR) of Repub-

lic Act No. 9775, otherwise known as the Anti-Child Por-

nography Act of 2009, requires internet service providers

(ISPs), mall owners or operators, owners or lessors of busi-

ness establishments, and internet content hosts (ICHs) to no-

tify the Philippine National Police or the National Bureau of

Investigation within 7 days upon knowledge or receipt of

facts and circumstances

relating to child pornog-

raphy occurring in their

businesses. Photograph

developers, information

technology (IT) profes-

sionals, credit card com-

panies and banks have

been imposed the same

obligation.

ISPs

Under the new IRR, the

ISPs are also required to pre-

serve evidence for purposes

of investigation and prosecu-

tion by relevant authorities

and to furnish the particulars

of users who gained or at-

tempted to gain access to an

internet address which con-

tains any form of child por-

nography. However, there is

no legal obligation for the ISPs to engage in the monitoring of any

user, subscriber or customer, or the content of any communication of

any such person and that the ISPs cannot be held civilly liable for

damages on account of any notice given in good faith in compliance

the IRR.

All ISPs shall install available technology, program or software to

ensure that access to or transmittal of any form of child pornography

will be blocked or filtered.

An ISP who shall intentionally violate the IRR shall suffer be fined

a maximum of P1,000,000 for the first offense. In the case of subse-

quent offense, the penalty shall be a fined of not more than

P2,000,000 and revocation of its license to operate.

Mall Owners/Operators and Owners or Lessors of

Business Establishments

Aside from the 7-day notice requirement, the public display of any

form of child pornography within their premises is a conclusive pre-

sumption of the knowledge of the mall owners or operators and own-

ers or lessors of other business establishments’ of the violation of the

RA 9775. A disputable presumption of knowledge by mall owners or

operators and owners or lessors of other business establishments is

established if, through the exercise of ordinary diligence, mall own-

ers/operators and owners or lessors of other business establishments

should know or reasonably know that violations of RA 9775 are being

committed in their premises.

Any mall owner or operator and owner or lessor of other business

establishments, including photograph developers, IT professionals,

credit card companies, and banks, found guilty of intentionally failing

to comply with the notice requirements shall be penalized with a fine

of not more than P2,000,000 for the first offense. In the case of a sub-

sequent offense, the pen-

alty shall be a fine of not

more than P3,000,000

and revocation of its

license to operate and

immediate closure of the

establishment.

Web Site Host

In addition to the no-

tice requirement, ICHs

cannot host any form of

child pornography on its

internet address. Also,

ICHs shall give the par-

ticulars of the person

maintaining, hosting,

distributing or in any

manner contributing to

such internet address, to

the proper authorities

and preserve such evi-

dence for purposes of

investigation and prose-

cution. Moreover, upon the request of law enforcers, ICHs shall fur-

nish the particulars of users who gained or attempted to gain access to

an internet address that contains any form of child pornography mate-

rials.

The failure of the ICH to remove any form of child pornography

within forty-eight (48) hours from receiving the notice that any form

of child pornography is hitting its server shall be a conclusive evi-

dence of willful and intentional violation of RA 9775.

Personal Liability for Failure to Report Child

Pornography

The owner, manager, partner, member of the board of directors,

responsible officer and/or employee of the business establishments

mentioned who willfully and intentionally fails to comply with their

responsibilities under the IRR can be held criminally liable.

Anti-Child Pornography Act Rules

impose new duties on ISPs, Mall

Owners, and Web Site Hosts

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L E G A L F I N E S S E I 0 3

The Department of Justice (DOJ) issued DOJ Circu-

lar No. 41 covering the issuance of Hold-Departure

Orders (HDO) and Watchlist Orders (WLO). Accord-

ing to this circular, an HDO may now be issued by the

DOJ in criminal cases cognizable a court lower than the

Regional Trial Court. The DOJ may even issue an

HDO against an alien whose presence is required as

witness, defendant or respondent in a civil or labor

case. Also, in cases where the government is the ad-

verse party, or where the interest of national security,

public health, or public safety is at stake, the DOJ may

motu proprio issue an HDO against any person.

WLO may be issued by the DOJ in criminal cases pending

before the RTC or pending preliminary investigation, peti-

tion for review or motion for reconsideration before the DOJ

or any of its provincial or city prosecution offices. The DOJ

may likewise issue a WLO in cases involving violations of the “Anti-Trafficking Act of 2003” or in interest of national security, public safety or

public health.

An HDO is valid for a period of five years while a WLO is valid for a period of sixty days and may be extended for another sixty days.

However, a person against whom the HDO is issued may still leave the country by securing an Allow Departure Order (ADO). The ADO

requires an affidavit stating the purpose and inclusive dates of travel, and a travel clearance from the court or government agency where the case

is pending.

The new rules took effect on May 25, 2010.

NEW RULES ON HDO and WLO

BUREAU OF INTERNAL REVENUE ISSUANCES

SEE Issuance..., page 4

Revenue Memorandum Order No. 42-2010

Re: Prohibiting the Issuance of Temporary Restrain-

ing Orders on the Collection of Taxes Against the

BIR by Courts Other Than the Court of Tax Appeals,

the Issuance of Warrants of Distraint and Garnish-

ment, and/or Levy on Final Decisions of the BIR on

Disputed Assessments, Cases Filed Before the Court

of Tax Appeals, and the Sale of Property Distrained

and Garnished 4 May 2010

Under Section 218 of the National Internal Revenue Code (NIRC),

as amended, no court (except the Court of Tax Appeals) shall have the

authority to grant an injunction to restrain the collection of any na-

tional internal revenue tax, fee or charge imposed by the NIRC. This

prohibition shall apply to all collection activities, including imposition

and collection of taxes prescribed in tax laws; issuance of warrants of

distraint and garnishment, and/or levy on final decisions of the BIR on

disputed assessments, cases filed before the CTA, and the sale of

property distrained and garnished.

Moreover, pursuant to Section 11 of Republic Act No. 1125, no ap-

peal taken to the CTA from the decision of the BIR on a disputed as-

sessment shall suspend the payment, levy, distraint and/or sale of any

property of the taxpayer for the satisfaction of his tax liability, unless

the CTA suspends the collection under certain conditions.

Furthermore, when deemed proper, the BIR or its duly authorized

agent, may cause the issuance of a Notice of Tax Lien to safeguard the

interest of the national government pursuant to Section 219 of the 1997

NIRC, as well as other issuances by the BIR.

Based on the foregoing provisions, the TRO or injunctions issued by

courts other than the CTA against the BIR contrary to the aforesaid

provisions should be annulled and cancelled for lack of jurisdiction.

Upon issuance by the Commissioner or his authorized representative

of the final decision on the disputed assessment against the taxpayer or

upon filing of a Petition for Review before the CTA in Division or En

Banc of its decision upholding the assessment, Warrants of Distraints

and Garnishment, and/or Levy shall forthwith be immediately issued.

Recent BIR Issuances

Eco Cases..., from page 1

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Issuance..., from page 3

{Etcetera}

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*Laws, cases and issuances appearing in this

issue can be downloaded from

www.fnslaw.com.ph.

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0 4 I L E G A L F I N E S S E

Revenue Regulations No. 5-2010

Re: Amending Sections 3 (D) and 12 of RR

No. 11-2008 pertaining to the issuance of

TIN Card and Transfer of Registration

28 May 2010

In case of transfer of registration due to change of employer

of individuals earning purely compensation income, it shall

be the responsibility of the new employer to notify its Reve-

nue District Office (RDO) by submitting the duly accom-

plished Application for Registration Information Update

(ARIU) of the employee. The transfer of registration (TIN

records) of such employee shall be initiated by the RDO

which received the application.

Registration of employees of the transferring employer

shall simultaneously be transferred to the employer’s new

RDO once the transfer of registration of such employer is

completed. The transferring employer shall require all its em-

ployees (who are purely compensation income earners) to

accomplish the proper BIR Form, except employees with

multiple employments where the transferring employer is not

his or her main employer. The accomplished BIR Form of

the employees shall be submitted to the new RDO by the

transferring employer. A list of employees shall likewise be

submitted together with the ARIU by the transferring em-

ployer to the new RDO, excluding those employees who have

been separated prior to the transfer. In case the employer

hires new employees in its new location, applications for em-

ployees’ TIN shall be submitted for TIN issuance to the new

RDO.

Unlike in ordinary applications for a temporary restraining order or writ

or preliminary injunction, the TEPO applicant is not required to post a

bond.

An application for a TEPO may be included in a petition for issuance of

a writ of continuing mandamus to preserve the rights of the parties during

the pendency of the proceedings.

Citizen Suit

While in ordinary civil actions, only parties in interest may file suits,

under the new Rules for Environmental Cases, any Filipino citizen in rep-

resentation of others, including minors or generations yet unborn, may file

an action to enforce rights or obligations under environmental laws.

Upon the filing of a citizen suit, the court shall issue an order which

shall contain a brief description of the cause of action and the reliefs

prayed for, requiring all interested parties to manifest their interest to inter-

vene in the case within 15 days from notice thereof. The plaintiff may pub-

lish the order once in a newspaper of a general circulation in the Philip-

pines or furnish all affected barangays copies of said order.

Harassment suits disallowed

A legal action, whether criminal or civil in nature, filed merely for the

purpose to harass, vex, exert undue pressure or stifle any legal recourse

that any person, institution or the government has taken or may take in the

enforcement of environmental laws, protection of the environment or as-

sertion of environmental rights shall be treated as a Strategic Lawsuit

Against Public Participation (SLAPP). The defending party in a SLAPP

case may raise this as a defense and request the court where the case was

filed to set a summary hearing to dismiss the suit. The plaintiff in the same

hearing needs to prove by preponderance of evidence that his case is not a

SLAPP while the defending party only needs to show otherwise by mere

substantial evidence.

If the court dismisses the SLAPP case, damages may be awarded to the

defending party. The dismissal is with prejudice, which means that the

complaining party cannot file the same case anymore. On the other hand, if

the court denies the SLAPP defense, the evidence submitted during the

summary hearing will become part of the records of the main case.

Precautionary principle in evidence

In resolving admissibility of evidence in environmental cases, the courts

shall use the precautionary principle which means that the constitutional

right of the people to a balanced and healthful ecology shall be given the

benefit of the doubt. This manner of resolving the admissibility of evi-

dence is when there is a lack of full scientific certainty in establishing a

causal link between human activity and environmental effect.

In using the precautionary principle, the courts shall consider the follow-

ing factors, among others: (1) threats to human life or health; (2) inequity

to present or future generations; or (3) prejudice to the environment with-

out legal consideration of the environmental rights of those affected.

With these new concepts introduced by the Rules on Environmental

Cases, it is envisioned that those who have legitimate causes may prose-

cute civil and criminal actions in the expeditious and judicious manner.