Court Dismisses Save 182′s Case Against SM Baguio

December 14, 2012

by Paul Farol

But Baguio Tree Huggers say “WE WUZ ROBBED! Judge was ‘bribed’”

A typical and pervasive Filipino dysfunction is the unwillingness to accept defeat.

Even in instances where the defeat is incontestable (such as Manny Pacquiao’s knock out), Filipinos will find a way to question the fact that they’ve lost.

The usual and by now hopelessly cliched accusations will fly around, such as that the opponent cheated, judges were bribed, or the contest was rigged by some ‘mafia conspiracy’.  All pretty familiar and boring, typical of how quickly the Pinoy mentality latches on any excuse for his underachievement — no matter how silly or remotely related it is.

To the Pinoy Intellectual Dugyot what really is of supreme importance is that he can claim that he actually won if it were not cheated — which is somewhat part of the Pinoy repertoire that includes crediting themselves for other people’s achievements.

Pinoy Pride, ika nga.  Or is it just Pinoy Dunong-dunungan (people pretending to be experts)?

More often than not, those who loudly protest such defeats and go into all sorts of hysterics actually just don’t understand the rules in play.

Only a few days after Manny Pacquiao suffered sudden defeat at the hands of Juan Manuel Marquez, we find another situation where “we didn’t lost, we were cheated” thinking as well as sheer Pinoy Dunong-dunungan has come into play.

Members of Boycott SM Baguio and Save 182 are throwing a hissy-fit party with chief provocateur Karlo Altomonte banging the tribal gong after Judge Antonio Estevez of Branch 15 of the Baguio Regional Trial Court dismissed petitions against SM Baguio’s pine tree earth balling/mall expansion.

Here is a copy of the Court Decision on Save 182 petition against SM Baguio given to me by reporter friends who got a hold of it.

The decision is 20 pages long and takes a bit time to read, but here are a couple of passages worth highlighting — which tends to go against the claims propagated by Altomonte and members of Boycott SM/Save 182.

The court identified 9 issues for resolution:

1. Whether or not the legal and procedural requirements for the issuance of the Tree Cutting and Earth-balling Permit to the Private Defendants were duly complied with.

2. Whether or not the legal and procedural requirements for the issuance of an ECC and the amendment thereto were complied with by the Private Defendants and enforced by the Public Defendants.

3. Whether or not the legal and procedural requirements for the issuance of a Building Permit were complied with by the Private Defendants and enforced.

4. Whether or not the cutting and earth-balling of the trees at the Luneta Hill, Baguio City will cause the irreparable damage and detrimental effect to the resident of Baguio City, the Plaintiffs, and the environment.

5. Whether or not the proposed site is validly owned by SMIC, limited for the purpose of proving the alleged irregularity in the issuance of the subject permits, amendments, and certificates.

6. Whether or not SM complied with the Zoning Ordinance of the City of Baguio.

7. Whether or not the Private Defendants will suffer irreparable damage int he event that the proposed expansion of the mall will not be allowed

8. Whether the Plaintiffs are barred from instituting the above-captioned cases for the failure to exhaust administrative remedies under DAO 9637 and DAO 2003-30

9. Whether or not Cordillera Global Network and the other Plaintiffs have the legal personality to institute the above-captioned cases.

After reading the entire decision on Save 182′s complaint against SM City Baguio, I have come away with the impression that it is nothing but a nuisance suit — something typical of ambulance chasers who might be in dire need of money.

Of the 9 issues, let me just take up three and can read up the rest in the PDF file which can be accessed from the link above.

What the decision on these three issues spell out is that the court thinks Cordillera Global Network and Save 182 do not have any business interfering in SM’s business, but just for the sake of resolving the issue the court proceeded with the case.  Moreover, it resoundingly refuted claims that SM was actually doing harm to the environment by removing 182 trees from its private property.

The lawyer of Save 182 ought to give back any fees charged and do community service for failing to win any of the 9 issues presented, a dismal showing of whatever legal expertise which runs into a serious deficit.

On issue number 9, which basically looks into whether the Cordillera Global Network, other groups, and individuals actually have any business suing SM over the balling of pine trees.

Under the Rules of Court, Section 2, Rule 3:

A real party in interest is the party who stands to be benefited or injured by the judgment in the suit, or the party entitled to the avails of the suit. Unless otherwise authorized by law or these Rules, every action must be prosecuted or defended in the name of the real party in interest.

Source: Law Phil dot Net

What this rule basically says is that Juan cannot sue Pedro for cheating Maria out of deal, if Juan does not have any right to any part of the deal.  Basically, it prevents people from being a nuisance by sticking its nose in other people’s business.

The thing is, SM was basically removing trees from its own property — not the Cordillera Global Network’s property or public land.  The only requirement for this, as far as I know, is for SM to get clearance and permission from DENR — which it did.  What Cordillera Global Network and other groups did was pretty much like if your neighbor sues you for doing some landscaping — to which, if it happened to me, would probably result in a lot of four letter words erupting in my quiet neighborhood.

As I understand it he court decided to relax this rule, otherwise, it would have been dismissed.

On issue number 8,  which basically goes into whether the group filing the suit actually used the administrative processes prescribed by law for protesting the issuance of permits and licenses.

Apparently, the madudunong people in Save 182 were too EAGER to catch the limelight that they didn’t even so much as bother to first shoot an e-mail or write a letter to the DENR to tell them that they shouldn’t allow SM to ball trees in its own property.  They were too ready to GRANDSTAND and hysterically ACCUSE the DENR for the sake of publicity.

Here’s what the court had to say:

The Plaintiffs, as stakeholders, did not assail the issuance of the Amended ECC by way of an appeal with the Secretary of the DENR in accordance with the provisions as stated under Section 6 of DAO 2003-30. Alleged irregularities in the issuance of the Tree Cutting and Earth-Balling Permit to the Private Defendants were not, likewise, questioned by the Plaintiffs with the Secretary of the DENR or the Office of the President pursuant to the provisions of Section 1 of DENR DAO 1990-87. Lastly, the alleged infirmities in the issuance of the Building Permit to the Private Defendants were not raised on appeal to the Secretary of the DPWH as provided for under Section 307 of the National Building Code.

It is to be stressed that a case filed without the exhaustion of available administrative remedies renders a cause without the exhaustion of action premature.  Consequently, and as held in the base of Bangus Fry Fisherfolk vs. Honorable Lanzanas [G. R. 131442, July 10,2003, 405 SCRA 550], resort to the courts prior to the availing of this administrative remedy makes the cases dismissible. Undoubtedly, this pronouncement applies to these Environmental Cases.

…

Here, there was clearly no invocation of any exception to the exhaustion rule by the Plaintiffs at any state of the proceedings.Further they have not shown any administrative act to show that the issuance of the Permits was patently illegal. They have…correspondence whatsoever was shown by Plaintiffs to prove that they had given Public Defendants a chance to remedy whatever they alleged was improperly performed by them. There was no showing of any impracticability or oppressiveness in applying the doctrine.

Seeming to be completely IGNORANT of these basic procedures, SAVE 182 went on a much publicized TILILING RAMPAGE all over media PREMATURELY.

Perhaps, if the court weren’t lenient with the group, the case would have been thrown out of court.  But apparently, the judge was prevailed upon to hear it and allowed the case to proceed.

Here’s what the court said:

Undoubtedly, on the basis of these principles, the Environmental Cases ought to fail. Given, however, the importance of these cases, the Court will not leave the issues unresolved as the substantive issues therein contained deserve to be addressed once and for all, given their importance to the constituents of the City of Baguio, the Filipino People, as a whole, and the novelty and susceptibility to their being raised again in the future. The Court shall then proceed to discuss the substantial issues herein raised.

On issue number 4, which looks into the claim of Save 182 that the removal of the trees in SM’s own property will have a negative impact on the environment of Baguio City and the rest of the country.

It seems Save 182 was done in by its own witnesses. Dr. Michael Bengwayan, for instance, was shown to be talking out of his hat — if he had one — substituting CONJECTURE for something that ought to be established by SCIENTIFIC means.

Here’s a part of the decision that should be closely read:

Plaintiffs presented six witnesses on this particular issue. However, only one, in the person of Dr. Michael A. Bengwayan, was competent to testify on the alleged irreparable damage and deleterious effects of cutting and/or earth-balling trees to the Plaintiffs and to the environment.

…

Dr. Bengwayan readily quantified the effects of removing the trees in such a manner but admitted, on cross examinatio, that his conclusions on the effect of cutting and/or earth balling a tree is dependent on different factors such as the age, size, and health thereof as well as the location and surface area of the place where it is planted (TSN, July 26, 2012, p. 24). The Court notes, however, that the testimony of the witness is not generally based on his personal knowledge (TSN, 26 July 2012, p. 37) but on mere predictions (TSN, July 26, 2012, p. 25). Verily, Dr. Bengwayan’s testimony appears to be mere conclusions of fact devoid of any scientific basis or proper attribution and consequently failed to prove, by the quantum of evidence required, that the cutting and earth-balling of the 182 trees at the Luneta Hill, Baguio City will cause detrimental effects to the environment, the residents of the City of Baguio, and will eventually result to irreparable damage.

…

It is worth to note that parts of the testimony of the Plaintiffs’ witness, Dr. Palijon, were substantially lifted from scientific literatures. In fact, he studied the actual health of the subject trees, and assessed the mitigating measures based on the EPRMP as approved by the proper regulatory agency (TSN, 28 March 2011). The witness was consulted by SMPH to study the Benguet pin and ainus trees in Luneta Hill and has examined the 82 of the subject trees around two months prior March 28, 2012 (TSN, March 28, 2012, p. 11).  The witness, a duly qualified tree expert (TSN, March 28, 2012 p 5), admitted that there will, indeed be a reduction in the trees’ beneficial contributions to the environment, if removed.  He qualified, however that it is not substantial and that the removal of the trees will not, in fact, create any irreparable injury to the environment (TSN, March 28, 2012, p. 55).  He testified that there will be no hazardous effect on the health of the people of Baguio City if the subject trees are taken out of the particular area where SM City Baguio is located.  This is because the removal will be compensated by the green building that will be constructed, the 2,000 trees already planted in Busol Watershed and the 30,000 more trees that will be planted within the next three years (TSN, March 28, 2012 pp. 14 – 15).  Based on an article written by Nowak and Crane on oxygen production by urban trees in the United States published in the Arboriculture and Urban Forestry Journal (Exhibit 2), the witness testified that the diminution of Oxygen will not be substantial because of the removal of the 182 trees (TSN, March 28, 2012, p. 18)

…

From the afore-stated discussions, the Court accordingly rules that the cutting or earth-balling of the 182 trees within the vicinity of the Luneta Hill, Baguio City will NOT cause irreparable injury to the environment or the constituents cf the City of Baguio.

On issue number 1, which looks into the rather goofy use of EO 23 or the Total Log Ban and Article I (National Government and Local Government Units), Chapter III (Intergovernmental Relations) to prove that SM didn’t follow the right procedures in acquiring its permits from the DENR.

On EO 23, the court says:

Plaintiffs, however, failed to adduce a single piece of evidence to show that the 182 trees subject of these cases are part of a national and residual forest.  Likewise, the admission that the Expansion Project is classified as a commercial zone negates the claim that the site forms part of the area explicitly described in EO 23 (TSN, 23 August 2012; Exhibit 1-SMPH). Furthermore, it must be noted that the limitation of 30 trees as specified under Memorandum 2005-19 applies to cutting permits issued by the Regional Executive Director of the DENR-CAR and does not apply to cutting permits with the imprimatur of the Secretary of the DENR, as in these cases.  Defendants likewise presented proof of public consultation as a requirement under the Tree Cutting and Earth Balling Permit (TSN, September 25, 2012).

On the alleged necessity for SM to seek approval from the local gov

there was no showing that the endorsement by the City Mayor violated any law or procedure or that the DENR is required under the Local Government Code to consult the City Government including the City Council prior to its issuance of the ECC or the Tree-Cutting and Earth Balling Permit. The section invoked by the Plaintiffs under Article I (National Government and Local Government Units), Chapter III (Intergovernmental Relations) of the law, does not, however, find any application to these Environmental Cases.

Section 27 of said law explicity provides that:
“Prior Consultations Required. – No project or program shall be implemented by government authorities unless the consultations mentioned in Sections 2 (c) and 26 hereof are complied with, and prior approval of the sanggunian concerned is obtained: Provided, That occupants in areas where such projects are to be implemented shall not be evicted unless appropriate relocation sites have been provided, in accordance with the provisions of the Constitution” (Emphasis supplied)

A reading of the above cited provision of law is clear, Section 27 does not apply to the Expansion Project, as it is pursued by a private corporation and not by the National Government. It is worth to stress that the DENR is not implementing the Expansion Project so as to require prior consultations with the local government. Its role is only to assess and grant, if appropriate, a private entity’s application for an ECC or for a Tree Cutting and Earth Balling permit.

Private Defendants were likewise able to present proof of compliance with the requirements for the issuance of the Tree Cutting and Earth Balling Permit from the application, to the correspondence between SM City Baguio and the DENR, to the satisfaction of conditions and procedure for approval of the application (TSN, September 25 and October 3-4, 2012).

I’d continue with the other issues and how the court decided on each one of these, but it’s just too long to cite all here.

I sure hope none of the Save 182 movers and supporters does anything stupid to protest the Court’s decision dismissing their case against SM Baguio.

Paul Farol

Christian. Husband and father. Writer and Blogger. Amateur grass grower and fruit tree enthusiast. Car washer and polisher. Lusts after tools and gadgets at Handyman, Ace Hardware, and Japan Home Depot.