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ON CANADIAN GARBAGE DUMPED IN TARLAC

I. RELEVANT CONSTITUTIONAL PROVISIONS:
> The 1987 Constitution mandates the right to a healthy environment via
> Sec. 16, Art. II of the Philippine Constitution which provides that: The State shall
protect and advance the right of the people to a balanced and healthful ecology in
accord with the rhythm and harmony of nature.
> Section 15 of the same Article provides that: The State shall protect and
promote the right to health of the people and instill health consciousness among
them.
> Case Law: Oposa vs Factoran (G.R. No. 101083 July 30, 1993):
While the right to a balanced and healthful ecology is to be found under the
Declaration of Principles and State Policies and not under the Bill of Rights, it
does not follow that it is less important than any of the civil and political rights
enumerated in the latter. Such a right belongs to a different category of rights
altogether for it concerns nothing less than self-preservation and selfperpetuation aptly and fittingly stressed by the petitioners the
advancement of which may even be said to predate all governments and
constitutions. As a matter of fact, these basic rights need not even be written
in the Constitution for they are assumed to exist from the inception of
humankind. If they are now explicitly mentioned in the fundamental charter, it
is because of the well-founded fear of its framers that unless the rights to a
balanced and healthful ecology and to health are mandated as state policies
by the Constitution itself, thereby highlighting their continuing importance and
imposing upon the state a solemn obligation to preserve the first and protect
and advance the second, the day would not be too far when all else would be
lost not only for the present generation, but also for those to come
generations which stand to inherit nothing but parched earth incapable of
sustaining life.
The right to a balanced and healthful ecology carries with it the correlative
duty to refrain from impairing the environment. During the debates on this
right in one of the plenary sessions of the 1986 Constitutional Commission,
the following exchange transpired between Commissioner Wilfrido Villacorta
and Commissioner Adolfo Azcuna who sponsored the section in question:
MR. VILLACORTA:
Does this section mandate the State to provide sanctions against all
forms of pollution air, water and noise pollution?
MR. AZCUNA:

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Yes, Madam President. The right to healthful (sic) environment
necessarily carries with it the correlative duty of not impairing the
same and, therefore, sanctions may be provided for impairment of
environmental balance.

II. INTERNATIONAL TREATIES / DECLARATIONS /

CONVENTIONS:
Declaration of the United Nations Conference on the Human Environment
Principle 1: Man has the fundamental right to freedom, equality and adequate
conditions of life, in an environment of a quality that permits a life of dignity
and well-being, and he bears a solemn responsibility to protect and improve
the environment for present and future generations
Principle 6: The discharge of toxic substances or of other substances and the
release of heat, in such quantities or concentrations as to exceed the
capacity of the environment to render them harmless, must be halted in
order to ensure that serious or irreversible damage is not inflicted upon
ecosystems. The just struggle of the peoples of ill countries against pollution
should be supported.
Principle 11: The environmental policies of all States should enhance and not
adversely affect the present or future development potential of developing
countries, nor should they hamper the attainment
of better living conditions for all, and appropriate steps should be taken by
States and international organizations with a view to reaching agreement on
meeting the possible national and international economic consequences
resulting from the application of environmental measures.
Principle 22: States shall cooperate to develop further the international law
regarding liability and compensation for the victims of pollution and other
environmental damage caused by activities within the jurisdiction or control
of such States to areas beyond their jurisdiction.
Principle 24: International matters concerning the protection and
improvement of the environment should be handled in a cooperative spirit by
all countries, big and small, on an equal footing.
Cooperation through multilateral or bilateral arrangements or other
appropriate means is essential to effectively control, prevent, reduce and
eliminate adverse environmental effects resulting from activities conducted in
all spheres, in such a way that due account is taken of the sovereignty and
interests of all States.

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Proclamation No. 2: The protection and improvement of the human
environment is a major issue which affects the well-being of peoples and
economic development throughout the world; it is the urgent desire of the
peoples of the whole world and the duty of all Governments.
Proclamation No. 6: A point has been reached in history when we must shape
our actions throughout the world with a more prudent care for their
environmental consequences. Through ignorance or indifference we can do
massive and irreversible harm to the earthly environment on which our life
and well being depend. Conversely, through fuller knowledge and wiser
action, we can achieve for ourselves and our posterity a better life in an
environment more in keeping with human needs and hopes. There are broad
vistas for the enhancement of environmental quality and the creation of a
good life. What is needed is an enthusiastic but calm state of mind and
intense but orderly work. For the purpose of attaining freedom in the world of
nature, man must use knowledge to build, in collaboration with nature, a
better environment. To defend and improve the human environment for
present and future generations has become an imperative goal for mankind-a
goal to be pursued together with, and in harmony with, the established and
fundamental goals of peace and of worldwide economic and social
development.
Proclamation No. 7, Par 2: Local and national governments will bear the
greatest burden for large-scale environmental policy and action within their
jurisdictions. International cooperation is also needed in order to raise
resources to support the developing countries in carrying out their
responsibilities in this field. A growing class of environmental problems,
because they are regional or global in extent or because they affect the
common international realm, will require extensive cooperation among
nations and action by international organizations in the common interest.
BASEL CONVENTION on the control of transboundary movements
of hazardous wastes and their disposal
* Notes: The convention allows the transport of waste so long as the developing
country gives its written consent. We are a signatory to this.
* We have yet to ratify the Basel Ban Amendment, a proposed provision to the
convention that completely prohibits developed countries from transporting
garbage to poorer countries.
Article 4 of the Basel Convention provides for the general obligations of
countries involve in a transboundary movements of wastes. These obligations
deals with, among other thing, notices, consent and management.
Article 8 provides for the duty to re-import in case the waste exporter failed
to comply with the contract.

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Article 9 defines the Illegal traffic of wastes.
1. For the purpose of this Convention, any transboundary movement of
hazardous wastes or other wastes: (a) without notification pursuant to
the provisions of this Convention to all States concerned; or (b) without
the consent pursuant to the provisions of this Convention of a State
concerned; or (c) with consent obtained from States concerned through
falsification, misrepresentation or fraud; or (d) that does not conform in
a material way with the documents; or (e) that results in deliberate
disposal (e.g. dumping) of hazardous wastes or other wastes in
contravention of this Convention and of general principles of
international law, shall be deemed to be illegal traffic.
2. In case of a transboundary movement of hazardous wastes or other
wastes deemed to be illegal traffic as the result of conduct on the part
of the exporter or generator, the State of export shall ensure that the
wastes in question are: (a) taken back by the exporter or the generator
or, if necessary, by itself into the State of export, or, if impracticable,
(b) are otherwise disposed of in accordance with the provisions of this
Convention, 17 within 30 days from the time the State of export has
been informed about the illegal traffic or such other period of time as
States concerned may agree. To this end the Parties concerned shall
not oppose, hinder or prevent the return of those wastes to the State
of export.
3. In the case of a transboundary movement of hazardous wastes or
other wastes deemed to be illegal traffic as the result of conduct on
the part of the importer or disposer, the State of import shall ensure
that the wastes in question are disposed of in an environmentally
sound manner by the importer or disposer or, if necessary, by itself
within 30 days from the time the illegal traffic has come to the
attention of the State of import or such other period of time as the
States concerned may agree. To this end, the Parties concerned shall
co-operate, as necessary, in the disposal of the wastes in an
environmentally sound manner.
4. In cases where the responsibility for the illegal traffic cannot be
assigned either to the exporter or generator or to the importer or
disposer, the Parties concerned or other Parties, as appropriate, shall
ensure, through co-operation, that the wastes in question are disposed
of as soon as possible in an environmentally sound manner either in
the State of export or the State of import or elsewhere as appropriate.
5. Each Party shall introduce appropriate national/domestic legislation
to prevent and punish illegal traffic. The Parties shall cooperate with a
view to achieving the objects of this Article.
Article 12 provides for consultations on liability of parties involved in the
traffic of wastes.

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* NOTE PO ULIT: The Canadian garbage controversy is currently being treated as a
violation of customs law where the parties are the Government and the importers
(Canadian government is out of the picture). It is not being approached as a
violation of the Basel Conventions, despite of the fact that the Canadian embassy
has made known its position on the issue. It doesnt want back the trafficked wastes
as, according to them, it has no authority and mechanism to compel the return of
illegal shipments.
* World Trade Organization commitments hold the Canadian government
responsible for ensuring its shipments to other countries are safe and comply with
international agreements.

III. RELEVANT STATUTES

> RA 9003 (An act providing for an ecological solid waste management program)
Question: Are the landfills compliant with the prescribed standard under RA
9003?
> The Environment Code (PD 1152);
> The Illegal Disposal of Wastes Decree (PD 825);
> The Toxic and Hazardous Wastes Law (Republic Act No. 6969);

Ecological Solid Waste Management Act of 2000 (R.A. No.

9003)
SEC. 2. Declaration of Policies. It is hereby declared the policy of the State to
adopt a systematic, comprehensive and ecological solid waste management
program which shall:
a. Ensure the protection of the public health and environment;

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b. Utilize environmentally-sound methods that maximize the utilization of valuable
resources and encourage resource conservation and recovery;
c. Set guidelines and targets for solid waste avoidance and volume reduction
through source reduction and waste minimization measures, including composting,
recycling, re-use, recovery, green charcoal process, and others, before collection,
treatment and disposal in appropriate and environmentally sound solid waste
management facilities in accordance with ecologically sustainable development
principles;
d. Ensure the proper segregation, collection, transport, storage, treatment and
disposal of solid waste through the formulation and adoption of the best
environmental practice in ecological waste management excluding incineration;
SEC. 30. Prohibition on the Use of Non-Environmentally Acceptable
Packaging. No person owning, operating or conducting a commercial
establishment in the country shall sell or convey at retail or possess with the intent
to sell or convey at retail any products that are placed, wrapped or packaged in or
on packaging which is not environmentally acceptable packaging: Provided, That
the Commission shall determine a phaseout period after proper consultation and
hearing with the stakeholders or with the sectors concerned. The presence in the
commercial establishment of non-environmentally acceptable packaging shall
constitute a rebuttable presumption of intent to sell or convey the same at retail to
customers.
Any person who is a manufacturer, broker or warehouse operator engaging in the
distribution or transportation of commercial products within the country shall file a
report with the concerned local government within one year from the effectivity of
this Act, and annually thereafter, a listing of any products in packaging which is not
environmentally acceptable. The Commission shall prescribe the form of such report
in its regulations.
A violation of this Section shall be sufficient grounds for the revocation, suspension,
denial or nonrenewal of any license for the establishment in which the violation
occurs.
SEC. 42. Operating Criteria for Sanitary Landfills. In the operation of a
sanitary land fill, each site operator shall maintain the following minimum operating
requirements:
a. Disposal site records of, but not limited to:
1) Records of weights or volumes accepted in a form and manner approved
by the Department.
Such records shall be submitted to the Department upon request, accurate to
within 10 percent and adequate for overall planning purposes and forecasting
the rate of site filling;
2) Records of excavations which may affect the safe and proper operation of
the site or cause damage to adjoining properties;

3) Daily logbook or file of the following information: fires, landslides,

earthquake damage, unusual and sudden settlement, injury and property
damage, accidents, explosions, receipt or rejection of unpermitted wastes,
flooding and other unusual occurrences;
4) Record of personnel training; and
5) Copy of written notification to the Department, local health agency, and
fire authority of names, addresses and telephone numbers of the operator or
responsible party of the site;
SECTION 48. Prohibited Acts. The following acts are prohibited:
10. The manufacture, distribution or use of non-environmentally acceptable
packaging materials;
11. Importation of consumer products packaged in non-environmentally acceptable
materials;

12. Importation of toxic wastes misrepresented as recyclable or with

recyclable content;

SEC. 63. Report to Congress. The Commission shall report to Congress, not
later than March 30 of every year following the approval of this Act, giving a
detailed account of its accomplishments and progress on solid waste management
during the year and make the necessary recommendations in areas where there is
need for legislative action.

PHILIPPINE ENVIRONMENT CODE (P.D. 1152)

Section 43. Waste Management Programs. - Preparation and implementation of
waste management programs shall be required of all provinces, cities and
municipalities. The Department of Local Government and Community Development
shall promulgate guidelines for the formulation and establishment of waste
management program.
Every waste management program shall include the following:
a) an orderly system of operation consistent with the needs of the area
concerned;
b) a provision that the operation will not create pollution of any kind or will
constitute public nuisance;
c) a system for a safe and sanitary disposal of waste;
d) a provision that existing plans affecting the development, use and protection
of air, water or natural resources shall be considered;
e) schedules and methods of implementing the development, construction and
operation of the plan together with the estimated costs; and
f) a provision for the periodic revision of the program to ensure its effective
implementation.
Section 44. Responsibility of Local Government. - Each province, city or
municipality shall provide measures to facilitate collection, transportation,
processing and disposal of waste within its jurisdiction in coordination with

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other government agencies concerned. For this purpose, the national
government shall provide the necessary subsidy to local governments upon
request made through the National Environmental Protection Council and
subject to such terms and conditions as the latter may provide.

THE TOXIC AND HAZARDOUS WASTES LAW (REPUBLIC ACT

NO. 6969);
SEC. 2. Declaration of Policy. It is the policy of the State to regulate, restrict or
prohibit the importation, manufacture, processing, sale, distribution, use and
disposal of chemical substances and mixtures that present unreasonable risk and/or
injury to health or the environment; to prohibit the entry, even in transit, of
hazardous and nuclear wastes and their disposal into the Philippine territorial limits
for whatever purpose; and to provide advancement and facilitate research and
studies on toxic chemicals.
SEC. 13. Prohibited Acts. The following acts and omissions shall be considered
unlawful:
a. Knowingly use a chemical substance or mixture which is imported, manufactured,
processed or distributed in violation of this Act or implementing rules and
regulations or orders;
b. Failure or refusal to submit reports, notices or other information, access to
records as required by this Act, or permit inspection of establishment where
chemicals are manufactured, processed, stored or otherwise held;
c. Failure or refusal to comply with the pre-manufacture and pre-importation
requirements; and
d. Cause, aid or facilitate, directly or indirectly, in the storage, importation, or
bringing into Philippine territory, including its maritime economic zones, even in
transit, either by means of land, air or sea transportation or otherwise keeping in
storage any amount of hazardous and nuclear wastes in any part of the Philippines.

PHILIPPINE CLEAN AIR ACT OF 1999 (REPUBLIC ACT NO.

8749)
SEC. 2. Declaration of Principles. The State shall protect and advance the right
of the people to a balanced and healthful ecology in accord with the rhythm and
harmony of nature.

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The State shall promote and protect the global environment to attain sustainable
development while recognizing the primary responsibility of local government units
to deal with environmental problems.
The State recognizes that the responsibility of cleaning the habitat and environment
is primarily area-based.
The State also recognizes the principle that polluters must pay. Finally, the State
recognizes that a clean and healthy environment is for the good of all and should,
therefore, be the concern of all.
SEC. 4. Recognition of Rights. Pursuant to the above-declared principles, the
following rights of citizens are hereby sought to be recognized and the State shall
seek to guarantee their enjoyment:
a) The right to breathe clean air;
b) The right to utilize and enjoy all natural resources according to the principles of
sustainable development;
c) The right to participate in the formulation, planning, implementation and
monitoring of environmental policies and programs and in the decision-making
process;
d) The right to participate in the decision-making process concerning development
policies, plans and programs projects or activities that may have adverse impact on
the environment and public health;
e) The right to be informed of the nature and extent of the potential hazard of any
activity, undertaking or project and to be served timely notice of any significant rise
in the level of pollution and the accidental or deliberate release into the atmosphere
of harmful or hazardous substances;