Land Use Policy 52 (2016) 501–510

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Land Use Policy

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Public participation in environmental governance in the Philippines:

The challenge of consolidation in engaging the state
Weena Gera ∗
University of the Philippines Cebu, Gorordo Avenue, Lahug, Cebu City 6000, Philippines

a r t i c l e i n f o a b s t r a c t

Article history: This paper provides an overview of the extent of institutionalization of public participation in environ-
Received 14 October 2013 mental governance in the Philippines using the three-pillar framework of the Aarhus Convention and
Received in revised form 18 February 2014 Principle 10 Guidelines: access to information, public participation in decision-making and access to
Accepted 19 February 2014
justice in environmental matters. It analyzes the shifting demarcations of public engagement and how
these are defined by the interplay of institutional-legal structures with the country’s political economy
Keywords:
constraints. It argues that while the country appears to have a strong institutional design for public
Consolidation
participation, there is a decisively low level of institutionalization of actual participatory processes that
Public deliberation
Institutionalization
could not achieve substantive autonomy from power structures. A critical factor to this is the weak-
Environmental governance ness in public deliberations and interactions among civil society groups in the country that constrain
legitimacy of representation, coherence and necessary consolidation in engagements with government
institutions. While pluralism is a key tenet of public participation, the situation in the Philippines shows
the limitations of its application, particularly amid a patrimonial political context. Such weakness amid
complexities in aggregating public interest allows particular interests to predominate in reconfigurations
of the boundaries of involvement in environmental matters, displacing otherwise legitimate groups in
the margins of collaborative governance.
© 2014 Elsevier Ltd. All rights reserved.

Introduction particularly amid the growing vulnerability of the country to disas-

The situation in the Philippines constitutes a critical case study
in East Asia in terms of public participation in environmental mat-
ters. The country was an important part of the democratic wave in
the 1970s/80s that paved the way for participatory governance.
The 1987 Constitution laid down the framework for a demo-
cratic space that facilitated the emergence of an extensive civil
society in the country constituting over 15,000 non-government
and community-based organizations (NGOs/CBOs) (Velasco, 1999).
Legal provisions have also expanded government relations toward
a broad accommodation of non-state actors and ordinary citizens
in determining policies directly affecting them. As a result, protest
politics and hardline confrontational stance gave way to critical
engagement and collaboration characterized by “dialog, negoti-
ation, compromise, and partnership with the government for a
win-win resolution of conflicts” (Etemadi, 2012, pp. 166–167).
The decades-long tradition of partnership and public partici-
pation in governance permeates through environmental matters
∗ Tel.: +639985588421; fax: +63322334708.
E-mail addresses: wsgera@up.edu.ph, weenagera@yahoo.com
ter threats. The country’s state of environment is noted to be acutely
at risk. The World Risk Report 2012 published by the United Nations
University ranked the Philippines as the third most disaster-prone
country in the world (Mucke, 2012, p. 9). It increasingly suffers
from the devastation of worsening climate-induced storms and
cyclones ranging from 11 to 32 total per year, intense rainfall, ris-
ing sea levels, floods and landslides. Lying along the Pacific Ring
of Fire, the country is also prone to earthquakes. Moreover, the
Philippines is replete with documented cases of man-made contrib-
utions to hazards such as illegal and corporate logging, watershed
degradation, large scale open-pit mining, expansion of coal-fired
power plants, solid waste mismanagement, widespread land use
conversion for commercial purposes and overall resource extrac-
tion (IBON, 2006; Boongaling, 2012; Center for Environmental
Concerns-Philippines, 2012a,b).
It is this context of increasing vulnerability that demands a
rethinking of the ongoing collaborations between government and
civil society in environmental governance. As participatory frame-
works continue to gain relevance in development discussions,
there is a need to assess gaps and better understand how plural-
ist processes are constrained and take new dimensions. Amid the
conceptual ideals of diversity intrinsic in public participation, it

http://dx.doi.org/10.1016/j.landusepol.2014.02.021
0264-8377/© 2014 Elsevier Ltd. All rights reserved.
502 W. Gera / Land Use Policy 52 (2016) 501–510
is important to recognize the complexities of its practice. These
include perceivable reconstitution of civil society that involves
transforming webs of relationships and dependencies, negotia-
tions as well as confrontations, affecting the boundaries of public
participation. It has triggered a growing cynicism about the sys-
temic limits of civil society in the Philippines (Rood, 1998, 2005;
Holmes, 2011; Rivera, 2011). This pessimism against emerging pat-
terns of public engagement vis-à-vis power structures demands a
new inquiry, as we calibrate a framework of public participation in
increasingly urgent environmental matters.
This paper examines the extent of institutionalization of public
participation in environmental governance in the Philippines using
the three-pillar framework of the Aarhus Convention and Princi-
ple 10 Guidelines: access to information; public participation in
decision-making; and access to justice in environmental matters.
Along each pillar, it analyzes the shifting demarcations of partic-
ipatory processes and how these are defined by the interplay of
institutional-legal structures with the country’s political economy
constraints. Essentially, it argues that the country’s institutional
framework for public participation is decisively undermined by the
lack of systematic public deliberation and consolidation among civil
society groups. This renders them overwhelmed by patrimonial
power structures predominating in decisions over the boundaries
of involvement in environmental governance. The succeeding sec-
tions discuss in sequence the analytical and conceptual frameworks
of public participation in environmental matters, the relevant
institutional structure (including legislation) in the Philippines,
the interweaving constraints limiting public participation in envi-
ronmental governance in the country, and ultimately insights to
overcoming key challenges.
Framework
Pillars of public participation in environmental matters
This paper analyzes public participation in environmental
governance along three pillars: access to information, public partic-
ipation in decision-making and access to justice in environmental
matters. This framework is based on the principles enshrined in
the United Nations Economic Commission for Europe (UNECE)
Convention on Access to Information, Public Participation in
Decision-making and Access to Justice in Environmental Matters or
the Aarhus Convention adopted on 25 June 1998. Considered “one
of the most significant international environmental agreements”
(Mullerova et al., 2013, p. 8), the Aarhus Convention focuses on
the interactions between the public and public authorities in envi-
ronmental matters. Correspondingly, this framework is informed
by Principle 10 Guidelines, otherwise known as Guidelines for the
Development of National Legislation on Access to Information, Pub-
lic Participation and Access to Justice in Environmental Matters
adopted at the 11th Special Session of United Nations Environment
Programme (UNEP) Governing Council/Global Ministerial Environ-
mental Forum in Bali, Indonesia on 26 February 2010.
While public participation is a broad concept and includes the
public as a whole, the bounds dealt with in this paper are delim-
ited to direct engagement of the government with major organized
groups in civil society, particularly NGOs, CBOs and institutes. This
is to confine the focus of the paper on examining the dynamics of
environmental governance involving collaboration, accountability
and representation by legally organized entities (i.e. duly registered
and has legal identity) in civil society. These civil society organi-
zations (CSOs) also often pursue public interest/good, rather than
individual or private interests. This paper also distinguishes pub-
lic participation in decision-making from public participation in
implementation and enforcement.
Institutionalization of public participation vis-à-vis political
economy constraints and challenges of consolidation
Three key conceptual paradigms also inform the analysis of this
paper. First is inclusive governance and how it is defined by the
State’s predominance over it and by political economy constraints.
Second is the imperative of institutionalization of public participa-
tory processes, particularly in engaging/partnering with the State
in environmental governance. Third is the gap between the normat-
ive framework of pluralism in public participation and the limits of
its practical application, which thus requires more room for inter-
active public deliberation and mutual learning.
With regards the first paradigm, Pierre and Peters (2000, p. 12)
argue that in governance “the State is still the center of consid-
erable political power. . . playing a leading role, making priorities
and defining objectives.” Gera (2011) reiterates that while the
framework of inclusive governance extends beyond the confines
of government, it is still predominated by the State. Moreover, a
country’s political economy and the forces regulating it have the
potential to appropriate differentiated preferences and biases that
advantage some sectors over others (Dietz et al., 1989; Forester and
Stitzel, 1989; Stirling, 2006, 2008 cited in Dietz and Stern, 2008).
It can then be expected that its dynamics would reflect interests,
motivations, networks and the political power of the players to
influence participatory processes.
This is where the argument for institutionalization of public
participation becomes imperative. Klijn and Kloppenjan (2006)
note that the institutional design of governance mechanisms have
important effects on structuring relationships and networks, as
well as on shaping policy outcomes. To operationalize the notion
of an institutionalized polity, the main attributes are stability of
processes (endurance, regularity, and non-variance) and strong
institutions (Gerring et al., 2005). North (1990, p. 3) defined insti-
tutions as the “rules of the game in a society, or more formally, as
the humanly devised constraints, that provide a stable structure
of human interaction.” Institutionalization of public participation
thus requires creation of enduring and non-arbitrary, non-ad hoc
systems of collaboration, and establishment of clear standards,
parameters, criteria, procedures and mechanisms of engagement
and coordination with government involving legitimate and fully
accredited CSOs.
Beyond a concrete institutional framework, institutionalization
requires that formal institutions (including laws) and informal
ones, prevail over power structures – one key aspect of the
rule of law. It requires transparent and accountable enforcement
of standards that discourages arbitrary, irregular and politically-
motivated decisions and power play (Batalla, 2000). It means that
the State has been able to achieve relative independence or insu-
lation from the demanding clamor of special interests (Nordlinger,
1987 in Leftwich, 2001, p. 161) to effectively enforce legislations. It
also means that civil society maintains accountability and substan-
tive autonomy from clientelist interests, achieved through clear
mandates and strategic consolidation of initiatives in collaborative
processes. As synthesized by Reid (2008 cited by Holmes, 2011),
civil society needs to calibrate a “much clearer criteria. . . for entry
into and support for state programs” or risks being “absorbed by
and constituted on the basis of clientelist and semi-clientelist rela-
tions.”
Third is the challenge of consolidation amid the complexi-
ties of pluralist societies. While pluralism as a means to bringing
new ideas is inherent in public participation, the limitation of
its application becomes apparent in processes of collaboration
and partnering with government institutions. CSOs are intrin-
sically diverse and plural constituting varied policy objectives
and approaches, different levels of resources: from grassroots
movements to more sophisticated and well-funded organizations,
 W. Gera / Land Use Policy 52 (2016) 501–510
different orientations: from development organizations looking to
collaborate and engage with decision-makers, to activist groups
who prefer to monitor and scrutinize failures in public service. This
diversity however, could also in practice result to conflicts, tensions
and fragmentation that constrain inclusive processes.
Hooghe and Stolle (2003, pp. 235–236) argue that a conception
of civil society that situates it mainly as a “seedbed of virtue” risks
glossing over the reality that there are voluntary organizations in
the wider civil society that may in fact “strengthen existing cleav-
ages and exclusion patterns.” Rivera (2011, p. 184) also argues that,
“citizen participation in civil society groups does not have a uni-
formly virtuous impact on the public accountability process since
such groups themselves have different and oftentimes conflicting
agendas and political preferences.” Amid such complexities of plu-
ralist societies, Leuven (2009, p. 50) suggests that an important part
of a more inclusive consensus is a “result of a deliberative and inter-
active process and mutual learning. . .” Otsuki et al. (2013, p. 4) also
propose that, “the thorny issue of the ownership of collaborative
projects should be openly discussed and defined through public
deliberations.”
Institutional structure of public participation in
environmental matters in the Philippines
The Philippines has been considered to have the most progres-
sive environmental legislation in the Southeast Asian region as well
as in terms of public participation in environmental matters (Lin-
Heng, 2002). Broadly, public participation is enshrined in the 1987
Constitution with Article II Section 23, Article XII Section 5 and
Article XIII Sections 15–16 recognizing the rights of independent
people’s organizations (POs), including indigenous communities,
to pursue their legitimate and collective interests and aspirations
through peaceful and lawful means, at all levels of social, political
and economic decision-making. Article VI Section 32 also mandates
the provision of initiative and referendum. Specifically on environ-
mental matters, a plethora of national laws as well as ordinances
legislated at local levels promote public participation in terms of
access to information, decision-making processes and access to jus-
tice. This section provides an overview of legislations at the national
level.
Access to information
People’s access to information is a constitutionally enshrined
right. Two major provisions, Article II Section 28 and Article III Sec-
tion 7, promote the right of the people to information on matters
of public concern and provide for policies of full and compulsory
public disclosure of all transactions involving public interest. There
is however no enabling law that provides the mechanics for the
implementation of this mandate. The Supreme Court in the case
of Chavez v. NHA (G.R. No. 164527, August 15, 2007) observed: “It
is unfortunate, however, that after almost 20 years from birth of
the 1987 Constitution, there is still no enabling law that provides
the mechanics for the compulsory duty of government agencies
to disclose information on government transactions. Hopefully. . .
Congress decides to approve the proposed ‘Freedom of Access to
Information Act’.” To this writing, Congress has yet to fulfill this
mandate.
Nonetheless, the right to information has been upheld by the
Supreme Court to be enforceable even without an implementing
legislation. This has been applied in the leading case of Legaspi vs.
Civil Service Commission (G. R. No. 72119, May 29, 1987) where
the Supreme Court argued that the guarantee provisions are “self
executing.” In this ruling, the Court concluded that the right may
be asserted by the people without need of ancillary legislation and
503
where it is denied, the people have recourse to the Courts through
a Petition for Mandamus.1 Moreover, Section 5(a and e) of the
1989 Code of Conduct and Ethical Standards for Public Officials
and Employees (RA 6713) obligates them to respond to letters sent
by the public within 15 working days from receipt thereof and to
ensure the accessibility of all public documents for inspection by
the public. Despite the lack of an enabling law that outlines the
mechanics of information disclosure, access to information is also
integrated in a number of environmental legislations that encour-
age public participation in decision-making. This can be gleaned in
the compendium of relevant national environmental laws compiled
in the subsequent section.
Participation in environmental decision-making
The rights of access to information and public participation in
environmental decision-making are jointly articulated in major
environmental legislations in the country. These national laws
identified and other institutional mechanisms, albeit not a com-
prehensive list, describe the overview of relevant provisions
illustrating the broad policy recognition of such rights.
Clean Air Act
The Philippine Clean Air Act of 1999 (RA 8749), Section 3d
mandates to “Promote public information and education and to
encourage the participation of an informed and active public. . .”
Section 4e provides “The right to be informed of the nature and
extent of the potential hazard of any activity. . .”; and (f) “The right
of access to public records which a citizen may need to exercise his
or her rights . . .” Section 4(c and d) mandates the right of citizens
to participate in decision-making processes including the formula-
tion, planning, implementation and monitoring of environmental
policies and programs. It also mandates that representatives from
NGOs and POs are to sit in the Governing Board to carry out the
formulated action plans.
Ecological Solid Waste Management Act
The Ecological Solid Waste Management Act of 2000 (RA 9003),
Section 2(h) mandates to “institutionalize public participation
in the development and implementation of national and local
integrated, comprehensive, and ecological waste management pro-
grams.” Representation by NGOs promoting recycling and the
protection of air and water quality in the National Solid Waste
Commission (Section 4a) and the Provincial Solid Waste Manage-
ment Board (Section 11g) are also recognized. To promote access
to information, Section 14(j) provides that a National Solid Waste
Management Status Report shall be updated and published every
2 years or as the need arises.
National Integrated Protected Areas System Act
Chapter 3 Section 3 of the National Integrated Protected Areas
System (NIPAS) Act of 1992 (RA 7586) provides for the public’s
access to information including maps and technical descriptions
under the NIPAS, including the conduct of public hearings. Section
3d requires the government to “organize consultative meetings
at locations within or near the areas identified for possible
establishment as protected areas.” Section 3g mandates to allow
opportunities for submission of the public’s views in writing for 30
days following the hearing date. It also acknowledges that, “the
effective administration of the NIPAS will require a partnership
1
A Petition for Mandamus is a special civil action under Rule 65 of the Rules of
Court whereby any tribunal, corporation, board, office or person that unlawfully
neglects the performance of an act that the law specifically enjoins as a duty may
be ordered by the courts to do the act required to be done (Malaluan, 2009).
504 W. Gera / Land Use Policy 52 (2016) 501–510
between the Government and other interested parties including
the indigenous cultural communities.” Section 13 provides for an
iterative process of public consultations and hearings with NGOs
and POs operating in and/or familiar with the conditions in the
concerned protected area, in preparing the management plans.
Wildlife Resources Conservation and Protection Act
The Wildlife Resources Conservation and Protection Act of 2001
(RA 9147) Section 12 mandates the conduct of public consulta-
tions with concerned individuals or entities in the introduction,
reintroduction or restocking of endemic and indigenous wildlife.
Public participation is provided for in Section 30, “The Secretary
shall deputize wildlife enforcement officers from non-government
organizations, citizens groups, community organizations and other
volunteers who have undergone necessary training for this pur-
pose.”
Comprehensive Water Quality Management Act
An Act Providing for Comprehensive Water Quality Manage-
ment (RA 9275) mandates that it shall be the policy of the State
to promote public information and education and to encourage
the participation of an informed and active public in water quality
management and monitoring.
Mining Act
The Philippine Mining Act of 1995 (RA 7942) provides for a
system of mineral resource exploration, development and conser-
vation. Section 16 states that “no ancestral land shall be opened for
mining operations without the prior consent of the indigenous cul-
tural community concerned.” It also reiterates in Section 70 that
POs and NGOs shall be allowed and encouraged to participate in
ensuring that contractors observe all the requirements of environ-
mental protection.
National Caves and Cave Resources Management and Protection
Act
Also known as Cave Act of 1992 (RA 9072), Section 2 mandates
that the State shall strengthen cooperation and exchange of infor-
mation between governmental authorities and people who utilize
caves and cave resources for scientific, educational, recreational,
tourism and other purposes. Section 5f requires the State to “tap
the cooperation of people’s and non-governmental organizations
as active partners in the conservation and protection of our caves
and cave resources.”
Disaster Risk Reduction and Management Act
The Philippine Disaster Risk Reduction and Management
(DRRM) Act of 2010 (RA 10121) was aimed at strengthening the
national DRRM system and institutionalize the national DRRM
plan to improve the coping capacities of communities and lessen
the adverse impacts of hazards and disasters. Section 1(d and
m) promotes the involvement of all sectors and stakeholders
concerned in the government’s disaster risk reduction programs
toward complementation of resources and effective delivery of ser-
vices. Representatives from CSOs and the private sector shall be
selected from among their respective ranks to the National Disas-
ter Risk Reduction and Management Council (Section 5). Further,
Section 6d also ensures a multi-stakeholder participation in the
development, updating, and sharing of a Disaster Risk Reduction
and Management Information System and Geographic Information
System-based national risk map as policy, planning and decision-
making tools.
Indigenous Peoples Rights Act
The 1997 Indigenous Peoples Rights Act (IPRA) (RA 8371) pro-
motes the participation of communities in the management of
natural resources through the Ancestral Domain Claim framework.
IPRA requires that indigenous communities be informed and con-
sulted, for their free, prior and informed consent (FPIC) before any
mining concessions or other projects are started. Section 6 of the
law provides for mandatory representation in all policy-making
bodies and in local legislative councils. In consultation with indige-
nous peoples, the National Commission on Indigenous Peoples
(NCIP) in close coordination with the Department of Interior and
Local Government (DILG) must come up with appropriate measures
to ensure the full participation of indigenous peoples in matters
affecting their development.
The Philippine Fisheries Code
Article II Sections 69–78 of the Philippine Fisheries Code of 1998
(RA 8550) mandate for the creation of the Fisheries and Aquatic
Resources Management Councils, which shall be formed by fish-
erfolk organizations/cooperatives and NGOs in the locality and be
assisted by local governments and other government entities. Sec-
tion 124 identifies members of fisherfolk associations who have
undergone law enforcement training and may be designated in
writing by the Department of Philippine Navy as deputy fish war-
dens in the enforcement of the Code and other fishery laws, rules
and regulations.
Strategic Environmental Plan for Palawan Act
The Strategic Environmental Plan for Palawan Act of 1992
(RA 7611) is a landmark legislation, which had brought together
multi-sectoral efforts in effecting a sustained agenda for the
continued existence of a unique ecological system. Section 2
declares that it shall promote and encourage the involvement
of all sectors of society and maximize people participation in
natural resource management, conservation and protection. Sec-
tion 10 on Coastal/Marine Zone mandates the “equitable access
to the resource and management responsibility by the local
community. . .” Section 11 on Tribal Ancestral Lands defines a spe-
cial kind of zoning to fulfill the material and cultural needs of the
tribes using consultative processes and cultural mapping of the
ancestral lands.
Environmental Impact Assessments
The Philippines was one of the earliest to initiate Environ-
mental Impact Assessments (EIA) among developing countries. It
formally established the Environmental Impact Statement (EIS)
System in 1978 through Presidential Decree 1586, which provides
the legal and procedural framework for conducting EIAs for projects
of the government and private companies likely to have signif-
icant environmental impact. The EIS System has provisions for
public involvement including public consultation and public hear-
ings. It also provides for alternative dispute or conflict resolution
which may be used to reach consensus if there are complex or
unresolved issues or constraints to scoping meetings and/or the
social acceptability of the Department of Environment and Nat-
ural Resources (DENR)’s decisions on Environmental Compliance
Certificates (ECCs). In 2010, DENR issued Memorandum Circular
2010–14 allowing for greater public participation in the imple-
mentation of the Philippine EIS system and for EIA findings to be
presented during public consultations.
Philippine Agenda 21 and the Philippine Council for Sustainable
Development
The significance of Philippine Agenda 21 launched in 1996 is
that is was a by-product of a consultative process among various
stakeholders. A series of year-long discussions, consultations and
consensus building activities opened up space for the stakeholders
to proactively input into the agenda (UNCSD, 2012). The Philippine
Council for Sustainable Development (PCSD), which was created
 W. Gera / Land Use Policy 52 (2016) 501–510
in 1996 via Executive Order 399 to become a major environmen-
tal governance body in the country is mandated to operationalize
the Philippine Agenda 21. It has become the locus of multi-sectoral
agenda setting on environmental concerns in the Philippines, also
mobilizing the Regional Development Councils and local coun-
cils for sustainable development. Among the four committees of
PCSD, two have sub-committees involving NGO representatives
(Magallona and Malayang, 2000).
Inter Agency Committee on Climate Change (IACCC)
Created by virtue of Administrative Order 220 in May 1991,
IACCC is composed of government agencies and NGO repre-
sentatives whose role is to coordinate, develop and monitor
implementation of various climate change related activities, formu-
late Philippine positions in international negotiations, conferences
and meetings on climate change.
Local land use and development planning and local sectoral
representation
The Local Government Code of 1991 (RA 7160), which devolved
environmental functions to the local government units (LGU),
elaborated provisions to ensure public participation in local envi-
ronmental governance. These are expressed in Sections 2c, 26 and
27, highlighting the imperatives for consultation with CSOs on
projects and programs involving the maintenance of ecological bal-
ance. Sections 35–36 of the Code also highlight the role of POs and
NGOs as partners of LGUs in pursuing various projects, including
environmental matters. Two critical features of the Code on pub-
lic participation include the Local Sectoral Representation (LSR)
system (Section 41c) for community stakeholder involvement in
legislation, and the Local Development Council (LDC) (Title VI, Sec-
tions 107–108) in development planning. The LSR is intended to
give the marginalized and the underrepresented sectors of soci-
ety the chance to be represented in the local legislature and to
articulate sectoral concerns. However, since 1991, this provision
remains unimplemented because of the lack of an enabling law
that authorizes the election of sectoral representatives, and none
of the pending bills have been passed.2
The LDC, on the other hand, assists the local legislative council
in setting the direction of economic and social development, and in
coordinating development efforts within its territorial jurisdiction.
Each LGU is mandated by the Code to produce a comprehensive
multi-sectoral development plan to be initiated by its LDC and
approved by its local legislative council. One of the tasks of the LDC
is to craft the Comprehensive Land Use Plan (CLUP), which serves
as a blueprint in the rational and sustainable use of land resources
for future physical development of cities and municipalities to be
adopted and enacted by the local legislative council into a Zoning
Ordinance.
As a key mechanism for public participation, the LDC is repre-
sented by NGOs, which shall constitute no less than one-fourth of
the members of the fully organized council. The legislative council
accredits NGOs subject to the guidelines and accreditation criteria
outlined in Article 64 of the Implementing Rules and Regulations
of the Local Government Code: “Procedures and Guidelines for
Selection of Representatives of People’s Organizations, Nongovern-
mental Organizations, or the Private Sector in Local Special Bodies.”
Moreover, the Department of Interior and Local Government (DILG)
issued in 2013 a Memorandum Circular (2013–70) to provide clar-
ificatory guidelines relative to the accreditation of CSOs and in the
selection of their representatives to the local special bodies. The
NGOs then choose from among themselves their representatives
2
These include House Bill 279 and House Bill 2137. http://www.congress.
gov.ph/press/details.php?pressid=7537.
505
to the LDC. Consultations with special interest groups and experts
are also conducted as well as presentation of the CLUP at an open
public hearing near the conclusion of the planning process.
Access to justice
In a landmark case in Philippine jurisprudence involving Oposa
vs. Factoran, promulgated on 30 July 1993, public participation
made a remarkable victory with the Court recognizing the right
of the children who appeared as parties in the case, to come to
court “to sue on behalf of succeeding generations . . . based on the
concept of intergenerational responsibility.” In 2007, the Supreme
Court designated 117 special environmental “green” courts within
the judiciary in the interest of pursuing improved environmental
adjudication (Ito, 2010). In 2010, environmental activists lauded
the Supreme Court issuance of the Rules of Procedure for Environ-
mental Cases (A.M. No. 09-6-8-SC).
These rules include provisions on civil suits including strate-
gic lawsuits against public participation (SLAPP) (Rule 6) ensuring
pre-emptive defense for those parties engaged in enforcing envi-
ronmental laws or asserting environmental rights. SLAPPs are civil
lawsuits filed against an NGO or individual for speaking out and/or
criticize projects or practices that harm both the environment
and affected communities. The SLAPP method involves intimida-
tion, silencing or ‘chilling’ of environmental defenders who had
to endure the stress and costly expenses of several years of lit-
igation, as a ‘punishment’ or ‘price’ for exercising their political
rights. These consequently decrease citizen willingness to partic-
ipate in policy-making or to act as watchdogs (Gleason, 2003;
Tapang, 2009; Bautista, 2010). Under the rules, persons or orga-
nizations can immediately file a counter case as defense against a
SLAPP.
The rules also contain the Writ of Kalikasan (or the writ of nature)
(Rule 7) recognized as the “most innovative provision” (Davide and
Vinson, 2010, p. 28) among the rules. The writ of Kalikasan is “a rem-
edy available to a natural or juridical person, entity authorized by
law, people’s organization, non-governmental organization, or any
public interest group accredited by or registered with any govern-
ment agency, on behalf of persons whose constitutional right to a
balanced and healthful ecology is violated, or threatened with viola-
tion by an unlawful act or omission of a public official or employee,
or private individual or entity, involving environmental damage of
such magnitude as to prejudice life, health, or property of inhabi-
tants in two or more cities or provinces.” Moreover, Rule 8 provides
for the Writ of Continuing Mandamus which states that, “When
any agency or instrumentality of the government or officer thereof
unlawfully neglects the performance of an act which the law specif-
ically enjoins as a duty resulting from an office, trust or station in
connection with the enforcement or violation of an environmental
law rule or regulation or a right therein . . . the person aggrieved
thereby may file a verified petition in the proper court. . .”
From among the major environmental legislations previously
discussed, three explicitly articulated provisions on access to jus-
tice. First is the Philippine Clean Air Act, with Section 4g outlining
the right to bring about action in court or quasi-judicial bodies all
activities in violation of environmental laws and regulations; and
(h) the right to bring action in court for compensation of personal
damages resulting from the adverse environmental or public health
impacts of a project or activity. This latter mandate notably extends
beyond the framework of the Aarhus Convention and the Principle
10 Guidelines, which did not explicitly require compensation for
personal damage. Sections 41 and 42 also deal with citizen law-
suits against violators, agencies or government officials. Second is
the Ecological Solid Waste Management Act with Sections 52 and
53 providing for citizens suits and defense against SLAPPs. Third
is the IPRA with Section 15 stipulating the State’s recognition of
506 W. Gera / Land Use Policy 52 (2016) 501–510
indigenous people’s “right to use their own commonly accepted
justice systems.”
Shifting boundaries and political economy constraints to
public participation in environmental governance
Amid a comprehensive institutional framework of public par-
ticipation in environmental matters in the Philippines, prevailing
political economy constraints significantly influence the shifting
boundaries and parameters of engagement with the State. Such
constraints interweaving with systemic limitations and dynamics
among CSOs in the country, can be gleaned along the three pillars
elaborated below.
Access to information
It can be said that the strength in public participation in
decision-making is diminished by the very limitations in legislation
for providing access to information. As noted, there is no enabling
law that provides the mechanics for the implementation of the
compulsory duty to disclose environmental related transactions of
public interest. The expected lack of exactness in the absence of leg-
islation opens the provisions to wide interpretation. According to
Malaluan (2009), a co-convener of Access to Information Network –
Philippines, access to information is differently and inconsistently
applied across government agencies due to the lack of a standard
process of responding to requests as well as the absence of a definite
scope. There is thus no compelling deterrents or sanctions to the
unlawful withholding of information. He further argued that the
judicial remedy of Mandamus is “inaccessible to the public” based
on a Social Weather Station survey whereby only 12.7% would file
a case in court if refused access to a public document (p. 4).
The Supreme Court argued in a 1987 decision that the guar-
anteed provisions of the Constitution are “self executing” and
enforceable even without an implementing legislation. Yet, it con-
tradicted itself in the case of Chavez vs. PCGG (G.R. No. 130716,
December 9, 1998) noting that, “there are no specific laws pre-
scribing the exact limitations within which the right may be
exercised or the correlative state duty may be obliged.” Based on a
review of Philippine laws and cases on access to information con-
ducted by Ideals Inc. (2012), it cited a Supreme Court ruling in
the case of Almonte vs. Vasquez (G.R. No. 95367, 23 May 1995)
deciding that the rule of confidentiality based on Executive Priv-
ilege (Executive Order 464) is fundamental to the operation of
government and rooted in the separation of powers under the Con-
stitution. In another relevant case, Akbayan vs. Aquino (G.R. No.
170516, 16 July 2008) involving access to the full text of the Japan-
Philippines Economic Partnership Agreement on its implications
on the environment, the privileged character of diplomatic nego-
tiations including country offers has been recognized. The Court
ruled that, “neither the right to information nor the policy of full
public disclosure is absolute, there being matters which, albeit of
public concern or public interest, are recognized as privileged in
nature.”
Access to decision making
Environmental civil society movement in the Philippines is
notably vibrant and exercise considerable influence in policy-
making. For about three decades, the country has maintained
a strong tradition of government–NGO partnerships and multi-
stakeholder consultations and collaboration particularly in design-
ing development policy agendas. The pattern of public participation
in environmental decision-making in the country however reflects
various constraints.
Spill-over of a fragmented bureaucracy and patrimonial system
It is a question as to what extent civil society participation in
decision-making holds, in the context of a fragmented bureaucracy
and patrimonial political system in the Philippines. In a particular
case of bureaucratic fragmentation, while it has been noted that
there is an active public participation in the Inter-Agency Commit-
tee on Climate Change, its functions overlap with that of the purely
government Climate Change Commission and the Presidential Task
Force on Climate Change. It was never clear how much of the pub-
lic’s voice has been integrated in processes of coordination among
these agencies.
Another is the case of Comprehensive Land Use Planning (CLUP)
in LDCs where civil society representatives sit. While it is mandated
by law that CLUP should inform the Zoning Ordinance, the case of
Cebu City would illustrate how the whole participation and consul-
tative planning processes become irrelevant, as Zoning Ordinances
are passed even before the CLUP could be finalized. The oft-cited
justification by city officials for this is purportedly due to the long
bottom-up planning process (up to 1 year) and for LGUs’ need to
catch up to fast changing urban landscapes. Moreover, most of the
targets and priorities identified in the CLUP by the LDC, are not
integrated into the annual and medium-term fiscal planning cycle
of LGUs. Local planning and investment programming often tend
to be mayor/governor-centric with ad hoc prioritization of projects
designed to be co-terminus to their 3-year term of office, disregard-
ing the mandated local development plans that do not offer direct
incentives for local officials. This makes the CLUP process largely
ineffectual.
Also a compelling constraint as underscored by Rood (2005) for
public participation is the government’s extensive use of informal,
‘back channel’ or midnight negotiations that are beyond the reach of
civil society. As evidence, provisions of the 1995 Philippine Mining
Act to conduct EIA prior to any mining exploitation are generally not
enforced as constrained by alleged informal negotiations and polit-
ical buy-outs/bribery involving mining corporations. A great deal of
controversy surrounds a number of proposed mining projects, like
those in Mindoro, Samar or Siargao (IBON, 2006).
Civil society fragmentation and mandate over representation
In inherently pluralist societies, the involvement of multiple
stakeholders is seen as a mechanism that facilitates the accom-
modation of alternative views facilitating responsiveness and
accountability in governance. CSOs and their varying agenda are
seen as counterparts of government in the delivery of a broad array
of public service goods. There are however persistent questions
on the mandate of certain civil society groups who are actively
engaging with the government to be genuinely representative of
the broad public’s environmental aspirations. With asymmetries
in experience, funding capacity and clout in ruling regimes, the
questions that continue to come up include: Who among the CSOs
are engaging the government? How are they selected to partici-
pate/along what criteria? Are they truly representative of the broad
civil society? Who are they directly accountable to? Do they have
the legitimacy and the mandate?
What often prevails in the country is a struggle over who has
the right to decide an agenda or who should be involved at what
point in the process of environmental decision-making, which is
central to the debates on public participation in environmental gov-
ernance. Even among networks cooperating with the government,
fragmentations persist in the struggle for official representation.
One case was over issues of representation in the Philippine Council
for Sustainable Development with a number of groups complain-
ing about being excluded from the process. This dynamic remains
manifest in the National CSO Consultation for the selection of civil
society representatives to sit in the National Disaster Risk Reduc-
tion and Management Council held in January 2013. Endorsements
 W. Gera / Land Use Policy 52 (2016) 501–510
were contingent upon the number of members a certain network
had or present during the consultation. With such intra-civil soci-
ety dynamics, initiatives are undermined, particularly its strength
vis-à-vis political forces controlling the government.
Amid complexities of environmental issues, scholars (Rossi,
1997; Sanders, 1997; Collins and Evans, 2002, Campbell and Cur-
rie, 2006 cited in Dietz and Stern, 2008) have argued that public
participation runs the risk of lowering the quality of decisions by
involving people who are unfamiliar with the science of environ-
ment and its uncertainties. A case signifying these limitations in the
Philippines is Cebu City’s consultation for crafting the Environmen-
tal Code. Questions were raised regarding issues of representation
and mandate as to how members from each sector were selected
and whether they have the capacity and expertise to give educated
inputs. Discussions were also crowded out by opinions that are not
necessarily informed by the experts (e.g. endless debates on sec-
toral and thematic delineations of environmental matters, such as
whether energy and climate change should be bundled together,
etc.).
Rood (1998) has long criticized the limits of Philippine civil soci-
ety when aggregating public interests. Amid differing priorities,
unity in the environmental movement does not always happen.
Depending on which goals particular NGOs are sympathetic with,
such proclivities define decisions to either cooperate with or criti-
cize the government. Often the more radical movements condemn
the motivations of their counterparts who decide to cooperate with
the government. Holmes (2011) identifies such inter-NGO differ-
ences in ideological lines and orientations and the single-issue
nature of many civil society groups in the country, as the key lim-
itations and dilemmas faced by this sector. Examining all these,
it can be argued that the weakness in public deliberations – to
facilitate mutual learning amid competing views on what the envi-
ronment should be like (i.e. indigenous knowledge not consistent
with scientific ideas), to facilitate dialog and reconciliation of exist-
ing inter-NGO tensions and conflicting positions, and to promote
consensus over representation – heightens fragmentation among
CSOs in the Philippines.
Webs of relationships and patterns of dependencies and
cooptation
What can be noted is that public participation in environmen-
tal governance in the Philippines is also contingent upon political
alliance or capacity for mass mobilization, with only occasional
considerations of environmental and technical expertise. Personal
ties and friendships also define which NGOs government officials
choose to collaborate with. Because of this, different acronyms are
formulated to label NGOs perceived to be controlled by government
such as GRINGOS for government run/initiated NGOs, or MUNGOs
for ‘mutant’ NGOs linked to mainstream politicians and govern-
ment officials (Rood, 2005). Currently, the country is plagued by
controversies over bogus NGOs and a favored network of groups
with dubious incorporators who have ties to government officials,
cornering billions worth of pork barrel funds.3
Conversely, certain NGOs have more clout in influencing policy
because they have more counterpart funds. Partnerships with gov-
ernment can be made easily because of strong resource backing.
NGOs with a mass base and broad appeal among the constituency
are also strategically selected by ruling regimes to mobilize support,
and such NGOs become fixtures in multi-stakeholder environ-
mental programs. Government also appears to be more willing
3
These are the discretionary Congressional funds, otherwise known as Priority
Development Assistance Fund (PDAF) used for projects endorsed by members of
Congress. Rufo, A. (2013). “Almost half of PDAF goes to favored NGOs” in Rappler,
26 July.
507
to collaborate with NGOs that are not very confrontational or
critical. While such collaboration does not automatically trans-
late to cooptation, these NGOs, including progressive ones, often
find themselves at the receiving end of cynicism among the CSO
community. Nevertheless, continuity of government–NGO partner-
ships are compromised when competing political factions extend
their differences to their selection of CSO “allies” to partner with.
NGOs critical of the administration could sometimes gain the upper
hand when mobilized or politically backed by the opposition.
Lack of technical know-how among community-based
organizations
Participatory approaches in resource assessment, planning and
management have been widely introduced among many communi-
ties in the Philippines. However, initiatives like community-based
forestry management (CBFM) remain over-regulated. Many com-
munities do not fully understand their legal rights and options
and lack the organizational, financial and technical capacity to
properly manage commercial aspects related to CBFM agreements
(Magallona and Malayang, 2000). Local communities remain gen-
erally dependent on what issues the media is highlighting or what
projects the government or their partner NGOs are laying out.
Those from among the ranks of the poor to lower middle class are
more focused on livelihood activities and are only compelled to be
involved if emerging issues begin to intervene with their ability to
procure food, water and health or secure their tenure and housing
needs.
When public participation in environmental matters becomes a
risk
The IPRA specifically mandates for the free, prior and informed
consent (FPIC) of indigenous communities before any mining con-
cessions or other projects are started. However, what turns out is
that the FPIC as a mechanism of voice and representation could only
subject community members to violence and intimidation amid
powerful economic and political interests. In many instances, the
poverty and vulnerability of indigenous communities are exploited
by manipulating the FPIC either through subtle means of bribery or
promises of financial and material benefits, or coercion through
military or paramilitary means (Longid, 2012). Bribery and coopta-
tion of tribal leaders caught in structures of patronage, fuel ethnic
tensions which resulted in the disintegration of otherwise peace-
fully co-existing multi-ethnic societies. There are also claims that
sometimes the local communities’ consent to the mining activities
is obtained through unfair consultation processes, e.g. in Palawan,
Mindoro, Sierra Madre (European Commission, 2009).
The Task Force for Indigenous People’s Rights reported extra-
judicial killings of indigenous peoples who lobbied against
mining companies encroaching indigenous land (United States
Department of State, 2011). Civil society groups working for indige-
nous communities prove to be overwhelmed in the context of
an armed insurgency and conflict. Rood (2005, p. 18) noted that,
“It is quite difficult for aboveground organizations to articulate
grievances in ways that might resemble the rhetoric of under-
ground organizations. Security organizations of the government,
both police and armed forces, may well hamper their activities.”
Access to justice
The situation of indigenous communities highlights the very
limitations of access to justice in environmental matters in the
Philippines. For instance, although Section 15 of the IPRA stipulates
the State’s recognition of indigenous people’s “right to use their
own commonly accepted justice systems,” the Asian Legal Resource
508 W. Gera / Land Use Policy 52 (2016) 501–510
Center (2012)4 noted that these institutions are either weak or dys-
functional such that even non-indigenous community members are
discouraged to file court actions, let alone indigenous people who
are often discriminated and deprived of even basic social services.
Despite Executive Order 79 and the IPRA, it has been reported that
roughly 60% of all approved mining applications in the country cov-
ering up to more than one million hectares, are all in the ancestral
lands of indigenous peoples (Salamat, 2013).
Political intimidation through SLAPPs
Public interest lawyers and NGOs actively participate in envi-
ronmental litigation (Lin-Heng, 2002). However, a critical deterrent
to promoting access to justice is the continuing prevalence of
SLAPPs. The incidence of SLAPP in the Philippines is related to the
increase of mining investments in the country since the enactment
of the 1995 Philippine Mining Act supporting more foreign min-
ing investments. Viewed as harassment suits, many SLAPP cases
against environmental defenders were filed by mining firms or
individuals associated with them, as a response to community
opposition to mining projects in their communities. Political intim-
idation, financial burdens, and a court case can distract or pose
challenges to campaigners and NGOs. By shifting the arena of dis-
pute away from the community and into the courts, SLAPPs are
seen to significantly impact on advocacy campaigns (Tapang, 2009).
Rivera (2011, p. 197) argued that, “. . .civil society organizations
have done an invaluable job of monitoring the exercise of power
and initiating reform advocacies but these same groups continue to
be repressed and harassed by powerful political clans and oligarchic
blocs.”
There has been an increasing number of SLAPP cases filed
against citizens and organizations critical of mining corporations.
In July 2007, two board members of the Center for Environ-
mental Concerns-Philippines (CEC-Philippines) found themselves
“SLAPPed” with a libel suit worth P10 million (around $200,000) for
publishing a primer discussing the ecological, economic, and social
impacts of the project on the island and its residents. The libel suit
was filed by the Philippine partners of Lafayette Mining Ltd., an
Australian-owned mining firm in Albay. In 2010, Bautista, National
Coordinator of Kalikasan People’s Network for the Environment
noted that the group has recorded more than 110 environmen-
tal advocates and community leaders facing SLAPP cases in court
mostly opposing big mining and logging projects.
Nonetheless, there has been concrete enforcement since the
Supreme Court issuance of the 2010 Rules of Procedure for Environ-
mental Cases. One case is the September 2011 dismissal of a SLAPP
suit against nine indigenous Ifugaos of Nueva Vizcaya sued by DENR
for allegedly occupying forest lands illegally. The suit was filed after
their vocal opposition to a large-scale mining project awarded to
Oceana Gold. However, despite the existence of Supreme Court
rules, there has yet to be a legislation that provides a comprehen-
sive anti-SLAPP mechanism in the Philippines. The two existing
legislations, which mandated on citizen suits have been deemed
“inadequate and limited in applicability” due to their scope (CEC-
Philippines, 2012a,b). In accordance with the Handbook on Access
to Justice, House Bill 3593, or the Anti-SLAPP Act of 2010 was filed
in Congress, which aims to define SLAPPs, prohibit the filing of
harassment suits, and provide measures for its dismissal.
Judicial deference to political economy constraints
The CEC-Philippines (2012a,b) argued that the judiciary has not
always been in favor of the environment and national patrimony.
4
“Philippines: Obstacles concerning access to justice and protection for indige-
nous people”, Statement submitted to Asian Human Rights Commission, 28 August
2012.
Outnumbering the landmark environmental cases are Supreme
Court decisions conceding to pressures on issues where politico-
economic priorities are in conflict with issues involving national
patrimony and natural resource utilization. This was particularly
evident in its reversal of the constitutionality of the Mining Act
of 1995 with its framework of mining liberalization. After initially
ruling on 27 January 2004 that certain provisions in the Mining Act
were unconstitutional, the Supreme Court reversed its stand on 1
December of the same year and upheld that the law was constitu-
tional in its ruling in the case of La’Bugal-B’laan Tribal Association,
Inc. et al. vs. Ramos et al. (GR No. 127882). By virtue of a change
in approach to Constitutional interpretation, the Court argues that,
“the mining industry plays a pivotal role in the economic develop-
ment of the country. . .”
Moreover, the CEC-Philippines (2012a,b) argued that while the
Supreme Court has notably taken steps to facilitating access to envi-
ronmental justice, these do not change the regular judicial process
and its inherent limitations. The green courts for instance were not
absolved of their regular cases to handle in addition to those involv-
ing environmental laws. There are still many environmental cases
dismissed due to failure to exhaust administrative remedies. Other
barriers to access justice for ordinary citizens include: high costs,
lengthy delays in the court process, and lack of information about
the judicial system and how it works (Co et al., 2010).
Conclusion
It can be argued that in the Philippines, there is a strong
institutional framework that mandates public participation in envi-
ronmental matters. It is after all an expected paradigm for any
country positioning itself as a functioning democracy. This allowed
for a number of CSOs to proactively engage government agencies
across levels in various environmental concerns. The Philippines is
rife with documented cases and practices where civil society advo-
cacy and participation have significantly influenced environmental
policies and programs. What remains a persistent observation how-
ever is that, civil society participation remains contingent upon the
varying agenda and priorities set by the State, including arbitrary
ones, often rendering inclusive legislation inadequate. Moreover,
while there is relative strength in public participation in policy-
making, it remains weak in ensuring and monitoring enforcement
and implementation, particularly in challenging violations of envi-
ronmental legal provisions, either by government or by private
entities. There are cases where CSOs have kept government officials
in check either by media exposure or by filing legal cases. These are
however more sporadic, if not generally undermined, or at times
thought to be politically backed.
The basic premise of this paper is that weakness in public
deliberations among civil society groups amid complexities in
aggregating plural interests constrains legitimacy of representa-
tion, coherence and necessary consolidation in engagements with
government institutions. The lack of institutional mechanisms for
interactions to facilitate mutual learning, dialog and consensus
amid competing views, tensions and fragmentation among CSOs
in the country, renders them largely overwhelmed by patrimonial
forces predominating the State. These allow particular interests to
predominate in reconfigurations of the boundaries of involvement
in environmental matters, displacing otherwise legitimate groups
in the margins of collaborative governance.
This weakness in public deliberations and consolidation results
to lack of recognition of mandates, mechanisms of accountabil-
ity, criteria and parameters of engagement and overall low levels
of institutionalization where CSOs become mired in the politics
of engagement. This is when partnership with government relies
mainly on how much an NGO or its network can mobilize a mass
 W. Gera / Land Use Policy 52 (2016) 501–510
base, or how much funds it brings in a program, or how much clout it
has in a particular regime vis-à-vis its competition with other NGOs
for representation. The more serious development NGOs with their
legitimate aspirations are finding themselves having to calibrate
their strategies and negotiate with political structures to influence
environmental governance from within. With the State having a
monopoly of authority and legitimacy, the challenge for civil soci-
ety is on how it can consolidate its ranks to become a more viable
and compelling counterpart of the government. CSOs can invest
in what are already available in law in expanding their abilities
to negotiate by strengthening existing collaborations among their
networks. While plural interests are inherent in any society, NGOs
and community organizations can move toward improving their
partnership with the government by arranging among themselves
a more thoughtfully calibrated structure of public deliberations and
cooperation to develop informed sectoral agreements on critical
environmental issues. Herein lies the strongest challenge by which
the Philippine CSOs are still confronted.
A key proposal made by Magallona and Malayang (2000) is
to strengthen horizontal collaboration through institutionalizing
mechanisms for joint resources to invest in converging interests
and advocacies. This could facilitate more fiscal independence
among CSOs and can protect their integrity in their engagement
with the government. International NGOs with more politically
neutral image can also play a role in arranging dialog among home-
grown NGOs and environmental experts and academics, and in
consolidating efforts horizontally as well as designing mechanisms
of consultations and collaboration. In such ways, CSOs can sustain
a more effective complementation without losing their ability to
contend with political forces, rather than allowing the whole pub-
lic participation process to be predominantly pursued within the
framework of the government. Essentially, public participation has
acquired a significance that goes beyond relations between the
State and the civil society. It warrants the reorganization of rela-
tionships among CSOs themselves and with the communities and
sectors they seek to represent, in negotiating their way to relevance
in environmental governance.
Acknowledgment
The author expresses sincere appreciation to Dr. Volker Mauer-
hofer for the opportunity to contribute to this project, as well as his
insights and advice.
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