SC unanimously junks Tubbataha plea

(Updated 4:09 p.m.) The Supreme Court has unanimously dismissed a petition seeking the issuance of a writ of kalikasan over the grounding of a US Navy minesweeper in the Tubbataha Reef in January 2013.

SC Public Information Office chief and spokesman Theodore Te said the high court sitting en banc voted 13-0-2 to junk the petition filed by a group composed of Catholic bishops, environmentalists, activists, and lawyers in April last year.

Te said newly appointed Associate Justice Francis Jardeleza, who was Solicitor General when the petition was filed, inhibited from the deliberation. The Office of the Solicitor General represents the government in legal cases.

In their petition for the issuance of a writ of kalikasan filed April 17, 2013, the petitioners sought among others the issuance of a temporary environmental protection order (TEPO).

The US servicemen named as respondents in the petition were Navy officials Scott Swift, Commander of the US 7th Fleet; and Mark Rice, commanding officer of the USS Guardian.

In their plea to the SC, the petitioners also asked the high court to direct the government to file administrative, civil, and criminal cases against individuals responsible for the grounding of the US Navy minesweeper USS Guardian on the reef last January.

In addition, they asked the court to provide Philippine authorities with "primary and exclusive jurisdiction" over US officials named as respondents in the petition, and also declare as unconstitutional Article V ("Criminal Jurisdiction") and Article VI of the Visiting Forces Agreement, which extends immunity to US servicemen.

In its ruling, the SC said the petition is considered as a suit against the US itself because the satisfaction of any judgment against the respondents — all US servicemen — would require remedial actions and the appropriation of US government funds.

"The court ruled that the principle of State Immunity from suit bars the exercise of jurisdiction by this Court over the persons of Swift, Rice and Roblning, all of whom are officers of the US Navy," the court said.

The SC also said it was "not persuaded" by the petition's argument that there was a waiver of immunity from suit under the Visiting Forces Agreement between the US and the Philippines because such a waiver only pertains to criminal jurisdiction and not to a special civil action like the writ of kalikasan plea.

The SC also declined to review the VFA and to nullify certain portions of it, saying a writ of kalikasan was not the proper remedy to assail the bilateral agreement's constitutionality.

The court also agreed with the position of Senior Associate Justice Antonio Carpio during deliberations that the incident was "within the ambit of Article 31 of the United Nations Convention on the Law of the Sea (UNCLOS)."

Even if the US refused to become a member of the UNCLOS, their refusal only centered on its disagreement with the UNCLOS regime of deep seabed mining in Part XI "and not with the US acceptance of customary international rules on navigation."

"The court stated that it expected the US to bear the 'international responsibility' under Article 31 in connection with the grounding of the USS Guardian which adversely affected the Tubbataha reefs," said the SC PIO in a summary of the ruling.

In their plea, the petitioners also said the Philippine government's $1.4 million estimate of the compensation that the US government owes the Philippines for the incident was "too small." They demanded a fine for the US that is 12 times the Philippine government's estimate.

They also asked the high court to require the US government to place a deposit to a trust fund "as a bona fide gesture towards full reparations."

But the high court denied the plea for damages because the recovery of damages, including the collection of administrative fines under Republic Act 10067, should be made in a separate civil suit or one deemed instituted with any criminal action.

As to the compensation and rehabilitation measures through diplomatic channels, the high court deferred to the executive department.

"The conduct of foreign relations of the government is committed by the Constitution to the political departments of the government and the propriety of what may be done in the exercise of this political power is not subject to the judicial inquiry or decision," the SC said.

The USS Guardian ran aground on Tubbataha Reef on January 17, 2013 but much of its potentially harmful content – including 15,000 gallons of fuel – were removed from the ship immediately. The ship was cut up and finally removed in late March of that year. —KBK, GMA News