Public trust according to Justice Leonen

Justice Ramon Paul Hernando’s ponencia in Maynilad v. DENR, which laid down the Public Trust Doctrine is in, itself, a re-invention. Justice Leonen’s concurrence is more than that, a reboot.

Leonen featured public trust not as a mere trustee relationship between State and its citizens—but rather, one akin to one of a public officer’s expected demeanor of accountability. “Public office is a public trust. Public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and lead modest lives.” This trust enshrined in Article X, Section 1 of the Constitution, ultimately benefits the people.

The people inhabit a republican state which is gifted with natural resources. In effect, such republican state must maintain an environment that promotes the “common good, public welfare, and public interest or benefit.” Naturally, the public-trust relationship between the government and its people must be a condition sine qua non for a State’s sovereignty. This sovereignty includes preservation of wealth, attainment of national economy and patrimony, and the security of social justice and equity.

“The people, as a community, depend and rely on their ecology. They will not exist without it. This ecology cannot have unlimited resources, especially in the face of climate and environmental changes, as well as unrestrained policies in connection with the exploitation of resources. The public trust doctrine, [thus,] recognizes these limitations and expands the concept of property, giving it a more equitable, just, and reasonable interpretation. Land and water are not simply owned and disposed of at will by the State. They are part of a community and an ecosystem, interdependent with each other.”

Leonen perseveres, that the main ponencia emphasized three doctrines, i.e., “(1) the regalian doctrine; (2) police power; and (3) the doctrine of [parens patriae]” integrated into the Public Trust Doctrine. To his mind, “public trust” is already ingrained in the Constitution. There is no need to further elaborate on jure regalia and parens patriae. Comparatively, “[t]he [ponencia] discusse[d] that [parens patriae] [‘]expresses the inherent power and authority of the state to provide protection of the person and property of a person [non sui juris].[‘] It refer[red] to the State [‘]as the last-ditch provider of protection to those unable to care and fend for themselves.[‘]” The main opinion focused on the consumers right to be protected by the State from the effects of capitalism and profits.

Leonen clarifies, however, quoting his own opinion in Samahan ng mga Progresibong Kabataan v. Quezon City, that for parens patriae to apply, there must first be “harm and the subsequent inability of the person to protect himself or herself.” It is not merely a utility concept that can replace the concept of police power. He maintains that for “the parens patriae doctrine [to] be properly applied, there must first be harm inflicted upon a person, and the subsequent inability of that person to protect him or herself. It may also only be applied if the matter is outside the scope of the powers, right, and duty of the person charged with protection, or if the latter is incapacitated or grossly deficient in fulfilling his or her duty. To apply it without these conditions is to grant an almost absolute power to the State, allowing it to arbitrarily exercise such power that might render the bestowed constitutional rights on another inutile. With due respect, the reference to the civil concept of [parens patriae] may not have been accurate.”

Leonen further elucidated that jure regalia is not provided in the 1987 Constitution even if Article XII, Section 2 of the 1987 Constitution exists. This provision calls upon the State’s ownership to lands of public domain and that these lands are not all presumed public. “They must be part of the public domain for the State to be deemed its owner.” In contrast to the regalian doctrine, it must be emphasized that “the due process clause in the Constitution protects all types of property, including those not covered by a paper title. This protection extends to those whose ownership resulted from possession and prescription, and to those who hold their properties in the concept of owner since time immemorial.”

In his concurring opinion, he included the essence of the Regalian doctrine in Heirs v. Malabanan as it applied Carino v. Insular Government, which emphasized that “the State’s ownership of all lands, irrespective of their ecology and the people who occupy them. The State acts as owner, exercising all rights of ownership over it, including the jus possidendi (right to possess), jus utendi (right to use), jus fruendi (right to its fruits), jus abutendi (right to consume), and jus disponendi (right to dispose). […]” “Carino clarified, however, that after the Spanish occupation, all properties and rights of the State are now [‘]to be administered for the benefit of the inhabitants [. ][‘]”

The concurrence explains it best that “[t]his shift in perspective-from unquestionable State ownership to the consideration of the inhabitants’ rights-is affirmed by the application of the public trust doctrine. Under the regalian doctrine, the natural resources simply belong to the State, no qualifications. Under the public trust doctrine, the State’s resources exist and are tempered for the benefit of the community.”

“Finally, as in police power, the public trust doctrine acknowledges that the people, as a community, hold an independent right that may be superior to private individual rights. Its objective may be to prevent widespread public harm and injury. Thus, while it may be used to regulate private rights, all still benefit from its application: ‘The public trust doctrine, viewed in this light, is a communitarian doctrine, protecting the broader and longer-term community interests against private exploitation that eventually can destroy both the community and the exploiters …. [U]nder the public trust doctrine … individual members of a community may have to endure shorter-term pain in order to ensure that both they and, more importantly, the community as a whole [to] avoid long-term diminishment or disaster.”

Leonen concludes that “[n]othing in the public trust doctrine sets the government apart from communities or individuals to be the sole repository of that trust. Indeed, as a democracy, and in recognition of the reality that we are all beings that depend on each other and on the web of life in this pale blue dot in a vast universe, we are all both trustees and beneficiaries of all natural resources, especially its waters-without which we will cease to exist.”

Truly the qualifications provided by this concurring opinion rebooted what has been a unique and innovative ponencia. Justice Leonen’s words provide the perfect foil for it —focusing on the synergistic relationship of the State, its representatives, and the people and the self-explaining existence of ‘public trust’ in the fundamental law of this land. The concurrence is not just a complement but a benediction.

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