Save Mahaba Protected Area: An Open Letter to President Rodrigo Duterte

Dear Mr. President,

Under the previous administration, a protected area in Surigao del Sur was unlawfully disestablished by DENR, who, contrary to law, undertook the disestablishment without an act of Congress. We appeal for your administration to reverse their decision, and reestablish Mahaba Island of Surigao del Sur as protected landscape and seascape.

Mahaba Island Mangrove Forest 520px
Mangrove forest of Mahaba Island, Surigao del Sur

DENR Usurps Congress

When in the opinion of the DENR a certain protected area should be withdrawn or disestablished … it shall, in turn, advise Congress. Disestablishment of a protected area … shall take effect pursuant to an act of Congress.

— Section 7, RA 7586 (NIPAS Act)

While the disestablishment of a protected area requires an act of Congress, the DENR under the previous administration disestablished Mahaba Island Protected Area without permission from the law-making body. DENR indeed unlawfully1 usurped the power of Congress by disestablishing Mahaba Island Protected Area all on their own, without an act from the legislative branch of the government2.

Protected Area by Presidential Decree

I, Ferdinand E. Marcos, President of the Philippines, do hereby withdraw from entry, sale, settlement or other forms of disposition … and establish as Mangrove Swamp Forest Reserves … the Islands of … Mahaba … in the province of Surigao del Sur … .

— Presidential Proclamation 2152

Having been specifically designated in Presidential Proclamation 2152 of 1981, Mahaba Island was as an initial component of the National Integrated Protected Area System (NIPAS). Mahaba Island was indeed administered as a protected area3 up to the year 2010, when DENR unilaterally disestablished it.

DENR Caraga Disestablishes Protected Area

In October 2010, DENR disestablished Mahaba Island as a mangrove swamp forest reserve4. There was no act of Congress allowing the disestablishment. Then DENR Caraga Executive Director, Edilberto S. Buiser5, only cited a report by another DENR personnel, Mario L. Eludo6, that Mahaba Island is not a protected area as basis for its disestablishment.

Buiser and Eludo justified the disestablishment of Mahaba Protected Area through the following statement:

“Mahaba Island at Barangay San Juan, Hinatuan, Surigao del Sur is not and could not be considered as an initial component of the protected areas system under RA 7586 or the NIPAS Act of 1992 because it was NOT a proclaimed national park prior to the passage of RA 7586.

“This office is of the belief, that the Mahaba Island being set aside as Mangrove Swamp Forest Reserves under the abovementioned proclamation [2152] is not the Mahaba Island situated in San Juan, Hinatuan, Surigao del Sur, but rather the Mahaba Island, subject of this case is situated in Placer, Surigao del Norte.”7

Protected Area by Ambiguity

Contrary to the statement of Buiser and Eludo, Presidential Proclamation 2152 of 1981 expressly designated Mahaba Island of Surigao del Sur as a mangrove swamp forest reserve. The Proclamation sets forth the following:

“I, Ferdinand E. Marcos, President of the Philippines, do hereby withdraw from entry, sale, settlement or other forms of disposition … and establish as Mangrove Swamp Forest Reserves … the Islands of Masopelid, Mahaba, Condona, Bayagnan, Bilabid and Caye all in the province of Surigao del Sur … .”

Although there is ambiguity in this specific provision on account that the other islands mentioned — specifically Masopelid, Condona, Bayagnan, Bilabid and Caye — are not found in Surigao del Sur, but in Surigao del Norte, this does not necessarily exclude Mahaba of Surigao del Sur from the list of protected areas. This ambiguous provision is susceptible to at least 3 interpretations, namely:

  1. That the protected area in the Presidential Proclamation refers to the Mahaba Island of Surigao del Norte, as Buiser and Eludo interpret the provision.
  2. That the protected area refers to Mahaba Island of Surigao del Sur, as specifically mentioned in Presidential Proclamation 2152.
  3. That the Mahaba Islands of both Surigao del Sur and Surigao del Norte are protected areas.

In fact, only 1 out of these 3 interpretations excludes the Mahaba Island of Surigao del Sur from the list of protected areas, whereas the inclusion of Mahaba Island of Surigao del Sur is expressly stated in Presidential Proclamation 2152, having expressly mentioned Mahaba Island of the Province of Surigao del Sur as protected area.

Most important, under the Regalian Doctrine — embraced by Philippine law as first and overriding principle — in case of ambiguity over ownership, presumption is always in favor of the state. Hence, it is, not private parties, but the Republic of the Philippines that owns Mahaba Island of Surigao del Sur by virtue of the same ambiguity in Presidential Proclamation 2152. Mahaba of Surigao del Sur is indeed a protected area.

DENR Usurps the Supreme Court

The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.

— Section 1, Article VIII of the Constitution

It ultimately should not even matter which Mahaba Island the DENR interprets as the protected area. This decision is beyond the jurisdiction of the DENR, but sits with the judiciary. DENR Caraga took it upon themselves to interpret the law, in this case a presidential proclamation, even though such power falls upon the Supreme Court of the Philippines. The DENR under the previous administration indeed usurped judicial functions8.

DENR Betrays the Philippines

Even as we speak, DENR Caraga, with approval from the office of the former DENR Secretary Ramon J. P. Paje, is voluntarily giving up ownership and control of state property in favor of private parties. In disestablishing Mahaba Island Protected Area and undertaking without proper authority to relinquish a state property from the ownership and control of the government, the DENR caused undue injury to the government. By entering on behalf of the government into a transaction manifestly and grossly disadvantageous to the same9, the DENR betrayed the Philippine Republic.

Mahaba Resident
Nanay Temie, a resident of Mahaba Island, Surigao del Sur

DENR Betrays the People

In the same way that the DENR wronged the government, DENR also caused undue injury to the people of Mahaba Island10 who were until 2010 protected by RA 7586 (NIPAS Act) as a tenured migrant community. As the DENR undertakes to alienate Mahaba Island to private claimants, they lay the hundreds of inhabitants in Mahaba Island open to eviction.

Contrary to law11, the DENR decided the case of Mahaba Island Protected Area in favor of private parties, instead of the state or the poor and underprivileged inhabitants of Mahaba Island12, when in the interest of the general public, Mahaba Island should have remained a protected area.

Protection Against Climate Change

In this day and age, when Climate Change threatens public safety, the protected status of Mahaba Island of Surigao del Sur provides additional protection from natural disasters. This Mahaba Island serves as buffer against storm surges and tidal waves. Mahaba of Surigao del Sur should indeed remain a mangrove swamp forest reserve.

 

Mahaba Island Fisherman
Fishermen of Mahaba Island, Surigao del Sur stand to lose their livelihood.

DENR Secretary Dismisses Appeal

An appeal dated December 19, 2013 was made with former DENR Secretary Ramon J. P. Paje to reestablish Mahaba Island Protected Landscape and Seascape. However, through an order dated March 10, 2015, the Office of the DENR Secretary dismissed the appeal on the basis of technicality, citing the lapse of reglementary period due to the inaction of the appellant’s then counsel, Atty. Daisy Jane Labao, whose inaction the Office of the Secretary says bound the appellant.

However, this matter concerning Mahaba Island of Surigao del Sur goes beyond technicalities in administrative proceedings and beyond private rights, but encompasses environmental and humanitarian interests, as well as the balance of power between the executive, legislative and judicial branches of the Philippine government. The former DENR Secretary’s decision did not address these most important concerns.

Children of Mahaba
Children of Mahaba Island, Surigao del Sur may lose their home.

Appeal with the Office of the President

An Appeal was made on May 14, 2015 with the Office of the President under the previous administration. To this day, no decision has yet been published on the appeal. Yours truly and the people of Mahaba Island fervently hope that His Excellency will reverse DENR’s decision to disestablish Mahaba Island as protected landscape and seascape, and therefore reestablish Mahaba Island of Surigao del Sur as protected area.

 

Most respectfully yours,

Jomar ‘Deomar’ Pandan
Resident
Mahaba Island, Surigao del Sur

 

Support Mahaba Island Protected Area

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Footnotes

  1. in violation of Article 239 of the Revised Penal Code
  2. as required by Section 7 of RA 7586 (NIPAS Act)
  3. through the Protected Area Management Board
  4. through the memorandum dated January 8, 2010 of then DENR Caraga Regional Executive Director, Edilberto S. Buiser, endorsed by the technical director of Protected Areas and Wildlife Services (PAWCZMS), Mario L. Eludo, and approved by the office of the DENR secretary
  5. in a decision dated October 12, 2010
  6. then technical director of Protected Areas and Wildlife Services (PAWCZMS)
  7. in a memorandum dated January 8, 2010
  8. in violation of Article 241 of the Revised Penal Code
  9. thereby violating Section 3 – e and 3 – g of RA 3019 or the Anti-Graft and Corrupt Practices Act, which prohibits —
    (e) Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence.
    (g) Entering, on behalf of the Government, into any contract or transaction manifestly and grossly disadvantageous to the same, whether or not the public officer profited or will profit thereby.
  10. in violation of Section 3 – e of RA 3019 (Anti-Graft and Corrupt Practices Act)
  11. namely, RA 7586 (NIPAS Act), the Revised Penal Code and RA 3019 (Anti-Graft and Corrupt Practices Act)
  12. in violation of Section 4 – c of RA 6713 or the Code of Conduct and Ethical Standards for Public Officials and Employees, which states the following:
    (c) Justness and sincerity. – Public officials and employees shall remain true to the people at all times. They must act with justness and sincerity and shall not discriminate against anyone, especially the poor and the underprivileged. They shall at all times respect the rights of others, and shall refrain from doing acts contrary to law, good morals, good customs, public policy, public order, public safety and public interest.
Last updated October 12, 2017
Deomar Pandan

About the Author

Deomar Pandan loves nature and the arts. He makes gemstone jewelry, and collects tribal accessories. Follow him now, and get revealing updates.