Fisheries

	Philippine Fisheries Code of 1998
	Cases:
	Tano v. Socrates  Yngson v. Secretary  Republic v. Delos Reyes  Salvilla v. Juamamoy  Esguerra v. Moreno  Terrado v. CA  People v. Zulueta  Roldan v. ARCA  People v. Maceren  People v. Legaspi

Fisheries; Certiorari, Prohibition, Declaratory Relief; Fisheries and Local Governance; Validity of local fisheries ordinances on closed season; General welfare clause of LGC as applied in fisheries; Devolved functions pertaining to fisheries; Marginal and subsistence fishers, defined; Protection of marine resources and rights of subsistence fishers under the Constitution; The SEP for Palawan Act

TANO v. SOCRATES
278 SCRA 154 (1997)

NATURE: Special Civil Action in the Supreme Court. Certiorari and Prohibition.
PONENTE: Davide, Jr., J.

FACTS:

The Sangguniang Panlungsod of Puerto Princesa enacted Ordinance No. 15-92 (15 December 1992) banning the shipment of all live fish and lobster outside Puerto Princesa City from 01 January 1993 until 01 January 1998. In relation thereto, Acting City Mayor Amado Lucero issued Office No. 23 directing the inspection of cargoes containing live fish and lobster being shipped out from the city’s airport, wharf or any other port to ascertain whether the shipper possessed the required Mayor’s Permit and that the shipment is covered invoice or clearance from the Bureau of Fisheries and Aquatic Resources.

Meanwhile, in February 1993, the Sangguniang Panlalawigan of the Province of Palawan enacted Ordinance No. 2, s. 1993, prohibiting the catching, gathering, possessing, buying, selling and shipment of specific live marine coral dwelling aquatic organisms for a period of five years in and coming from Palawan waters.

There are two sets of petitioners in this case. The first set consists of those charged with violating any of the aforementioned ordinances, in an effort to prevent prosecution. The second set consists of fishers and marine merchants who claim that they would be adversely affected by the ordinances.

ISSUES:

The contentions of the petitioners direct us to the issues of the case, to wit:

1. Whether or not the ordinances in question deprived them of due process of law, their livelihood, and unduly restricted them from practice of their trade.

2. Whether or not Office Order No. 23 contained no regulation nor condition under which the Mayor’s Permit could be granted or denied, thus, giving the Mayor the absolute authority to determine whether or not to issue the permit.

3. Whether or not provincial Ordinance No. 2 altogether prohibited the catching, gathering, possession, buying, selling and shipping of live marine coral dwelling organisms without any distinction whether it was caught or gathered through lawful fishing method, thus, took away the right of petitioners to earn their livelihood and prevented them from pursuing their vocation and business.

4. Ordinance No. 2 being null and void, whether or not the criminal cases based thereon should be dismissed.

HELD:

No to all issues. Case dismissed for lack of merit.

RATIO:

First, the case must fall on mere procedural defects. As to the first set of petitioners, a special civil action for certiorari must fail because of prematurity amounting a lack of cause of action. There is no showing that petitioners filed a Motion to Quash on the ground that the facts alleged do not constitute an offense because the Ordinances in question are unconstitutional. Even if the Motion to Quash were unsuccessful, the remedy is for the accused to go to trial and not to file for certiorari. If the trial court made an adverse decision, the remedy is still not certiorari under Rule 65 of the Rules of Court, but an appeal in the manner authorized by law. And even if in exceptional circumstance such denial may be the subject of a special civil action for certiorari, a motion for reconsideration must have to be filed to allow the court concerned an opportunity to correct its errors. Finally, even if a motion for reconsideration were denied, the remedy under Rule 65 is still unavailable absent any showing of the grounds provided for in Section 1 thereof.

As to the second set of petitioners, the proper remedy is Declaratory Relief questioning the constitutionality of the ordinances. As such, the petition must still fail because the Supreme Court has no original jurisdiction of over this relief. Although the Supreme Court has concurrent jurisdiction of cases involving questions of law, the hierarchy of courts must not be disregarded.

As to the merits, the rule is that laws and ordinances enjoy the presumption of constitutionality. To overthrow this presumption, there must be a clear and unequivocal breach of the Constitution, not merely a doubtful or argumentative contradiction. In short, the conflict must be shown beyond reasonable doubt. Against this backdrop, the Court finds petitioners’ arguments baseless. Art. XII, Sec. 2, and Art. XIII, Secs. 2 and 7 ensuring the preferential right of marginal and subsistence fishers in the utilization of coastal resources. However, petitioners never showed that they are marginal or subsistence fishers. On the contrary, some of them presented themselves as merchants. A marginal fisherman is an individual engaged in fishing whose margin of return or reward in his harvest of fish as measured by existing price levels is barely sufficient to yield a profit or cover the cost of gathering the fish (citing Bernas) while a subsistence fisherfman is one whose catch yields but the irreducible minimum for his livelihood. Sec. 131(p) of the Local Government Code of 1991 (LGC) defines a marginal farmer or finsherman as “an individual engaged in subsistence farming or fishing which shall be limited to the sale, barter or exchange of agricultural or marine products produced by himself and his immediate family.”

Art. XII, Sec. 2 of the Constitution aims primarily not to bestow any right to subsistence fishers, but to lay stress on the duty of the State to protect the nation’s marine wealth. What the provision merely recognizes is that the State may allow, by law, cooperative fish farming, with priority to subsistence fishermen and fishworkers in rivers, lakes, bays and lagoons. A survey of the statutes reveals that the only provision of law that speaks of such preferential right is Sec. 149 of the LGC which is not involved in this case.

What must also be borne in mind is the State policy regarding the duty of the State to protect and advance the right of the people to a balanced and healthful ecology, which is also expressly mentioned in the General Welfare Clause of the LGC. Sec. 5(c) of the LGC mandates that the general welfare provisions of the LGC shall be liberally interpreted to give more powers to the LGUs in accelerating economic development and upgrading the quality of life for the people of the community.

Finally, the centerpiece of the LGC is the system of decentralization as expressly mandated by the Constitution. Indispensable to decentralization is devolution which refers to the act by which the National Government confers power and authority upon the various LGUs to perform specific functions and responsibilities. One of the devolved powers enumerated in the section of the LGC on devolution is the enforcement of fishery laws in municipal waters including the conservation of mangroves. This necessarily includes the enactment of ordinances to effectively carry out such fishery laws within the municipal waters. Included in these devolved functions, insofar as the control and regulation of fishing in municipal waters and the protection of its marine environment are concerned, are the following:

1. Issuance of permits to construct cages within municipal waters;

2. Issuance of permits to gather aquarium fishes within municipal waters;

3. Issuance of permits to gather kapis shells within municipal waters;

4. Issuance of permits to gather/culture shelled mollusks within municipal waters;

5. Issuance of licenses to establish seaweed farms within municipal waters;

6. Issuance of licenses to establish culture pearls within municipal waters;

7. Issuance of auxiliary invoice to transport fish and fishery products; and

8. Establishment of “closed season” in municipal waters.

In light then of the principles of decentralization and devolution and the General Welfare Clause, which unquestionably involve the exercise of police power, the validity of the questioned ordinances cannot be doubted.

Parenthetically, the ordinances find full support in the Strategic Environmental Plan (SEP) for Palawan Act (RA 7611), which provides for a “comprehensive framework for the sustainable development of Palawan compatible with protecting and enhancing the natural resources and endangered environment of the province, “ which “shall serve to guide the local government of Palawan and the government agencies concerned in the formulation and implementation of plans, programs and projects affecting said province.”

The two ordinances in question have two principal objectives or purposes: (1) to establish a “closed season” for the species of fish or aquatic animals covered therein for a period of five years; and (2) to protect the coral in the marine waters of the Puerto Princesa City and Palawan from further destruction due to illegal fishing activities.

The first objective is well within the devolved power to enforce fishery laws in municipal waters. The devolution of such power has been expressly confirmed in the Memorandum of agreement of 05 April 1994 between DA and DILG. The realization of the second objective clearly falls within both the general welfare clause of the LGC and the express mandate thereunder to cities and provinces to protect the environment and impose appropriate penalties for acts which endanger the environment. The prohibition against catching live fish stems, in part, from the modern phenomenon of live-fish trade which entails the catching of so-called exotic species of tropical fish for aquarium use and for live banquet fish. These exotic species are coral-dwellers and are caught by squirting cyanide on coraline habitats. While the fish are meant to survive, the opposite holds true for the corals. The relationship then between the activities barred and prohibited by the questioned ordinances and the use of sodium cyanide is painfully obvious. The public purpose and reasonableness of the ordinances may not then be controverted.

The dissenting opinion’s theory that the subject thereof is within the jurisdiction and responsibility of BFAR under PD 704, and that, in any event the ordinances are unenforceable for lack of approval by the DENR Secretary cannot be accommodated. First, the jurisdiction and responsibility of BFAR under PD 704 is not all-encompassing. Section 4 thereof excludes from such jurisdiction and responsibility municipal waters, which are under municipal or city governments, except insofar as fishpens and seaweed culture in municipal centers are concerned. This section provides, however, that all municipal or city ordinances and resolutions affecting fishing and fisheries and any disposition thereunder shall be submitted to the DNR Secretary for approval. Second, it must be pointed out that BFAR has been transferred to the DA, first, by virtue of EO 967 of 1984, and then by EO 116 of 1987. Thus, if any approval were to be sought, it would not be that of the DENR Secretary but of the DA Secretary. However, the requirement of approval has been dispensed with because of the repeal or amendment of Secs. 16 and 29 of PD 704 by the LGC.

The Sangguniang Panlungsod of Puerto Princesa and the Sangguniang Panlalawigan of Palawan are thus commended for exercising the requisite political will to enact urgently needed legislation to protect and enhance the marine environment, thereby sharing in the herculean task of arresting the tide of ecological destruction.

MENDOZA, J., concurring:

Two important points of concurrence are: (1) the need to uphold the presumption of validity of the ordinances in view of the absence of evidence to undermine their factual basis; and (2) the need not to allow a shortcircuiting of the normal process of adjudication on the mere plea that unless the Supreme Court take cognizance of petitions like this, by-passing the trial courts, alleged violations of constitutional rights will be left unprotected.

The ordinances in question are conservation measures which the local governments have adopted in view of the widespread destruction caused by cyanide fishing. At the very least, these ordinances must be presumed valid in the absence of evidence to show that the necessary factual foundation for their enactment does not exist. The provincial ordinance in question is based on a 1992 study of the DA showing that as a result of cyanide and other noxious substances for fishing, only 5% of the coral reefs in Palawan remained in excellent condition while, 75% was heavily damaged. The rampant use of cyanide has been encouraged by the lucrative trade in live fish. That same concern over the use of cyanide in fishing also prompted the Sangguniang Panlungsod to pass the city ordinance in question. These ordinances are police power measures pursuant to the LGC which makes it in fact their duty to enact measures to “protect the environment and impose appropriate penalties for acts which endanger the environment, such as dynamite fishing and other forms of destructive fishing.” There is no basis for the claim in the dissenting opinion that the subject of these ordinances lies within the competence of the national government for the matter concerns a local problem. On the other hand, the DA submitted its report on the extent of the coral reef devastation in Palawan to the Sangguniang Panlalawigan and thereby left the solution of the problem to be worked our by the local authorities. It would therefore set back the policy of decentralization if the Court would sustain otherwise.

Indeed, petitioners’ challenge to the validity of the ordinances are beyond the power of local governments to enact but on the ground that they deprive petitioners of their means of livelihood and occupation and for that reason violate their constituional rights allegedly contained in Art. XII, Sec. 2, and Art. XIII, Secs. 1 and 7. These provisions cannot support petitioners’ contention. They refer to the duty of the State to protect the nation’s marine resources for the exclusive use of and enjoyment of Filipino citizens, to the preferential right of subsistence fishermen in the use of such communal marine resources, and to their right to be protected, even in offshore fishing grounds, against foreign intrusion. There is no question here of Filipino preference over aliens in the use of marine resources. What is in issue is the protection of marine resources in Palawan. It was precisely to implement Art. XII, Sec. 2 that the ordinances in question were enacted.

Aside from failing to overthrow the factual basis of the ordinances, petitioners also failed to show that the local legislation involved are arbitrary or unreasonable. It has been held that if the “laws passed are seen to have a reasonable relation to a proper legislative purpose, and are neither arbitrary nor discriminatory, the requirements of due process are satisfied, and judicial determination to that effect renders a court functus officio…With the wisdom of the policy adopted, with the adequacy or practicability of the law enacted to forward it, the courts are both incompetent and unauthorized to deal…”

The claim that the ordinances are excessive and irrational is untenable because the use of cyanide in fishing is already banned by other legislation. By prohibiting the catching of certain fishes and lobsters, the provincial ordinance in effect discourages cyanide fishing. Similarly, the claim that the provincial ordinance sweeps overbroadly misconceives the principal purpose which is not so much to prohibit the use of cyanide in fishing as to rebuild corals because of their destruction by cyanide fishing.

The ordinances do not deprive small fishers of their means of livelihood and occupation. The provincial ordinance covers only three species which are prized in the black market. The ban imposed by the city ordinance allows the transport and shipment of sea bass, catfish, mudfish and milkfish fries. Each ban is good for five years. It is thus limited both as to scope and time.

Finally, the claim that the office order in question is vague is untenable. As the order is pursuant to the ordinance, resort must be made to the latter in order to determine the scope of such office order. The ordinance prohibits the shipment out of the city of live fish and lobsters, with the exception of catfish, mudfish and milkfish fries. Consequently, a permit may be denied if it is for the transport of fishes covered by the ban, but not for those not covered by it. This is the common sense meaning of the office order.

BELLOSILLO, J., dissenting.

The petition raises significant constitutional questions. While petitioners apparently instituted the action to enjoin their criminal prosecution, the issue boils down to the validity of the questioned ordinances. The petition can be properly treated as an exception to the strict rules of procedure. Even if the purpose of the petition is for declaratory relief, if the petition has far-reaching implications and raises questions that should be resolved as they involve national interest, it may be treated as a special civil action for certiorari and prohibition. Petitioners are proper parties to set aside the proceedings in the trial court. A proper party is one who has sustained or is in immediate danger of sustaining an injury as a result of the act complained of.

The general welfare clause is not the sole criterion to determine the validity or constitutionality of the ordinances. The well-established tests of a valid ordinance are: (a) it must not contravene the Constitution or any statute; (b) it must not be unfair or oppressive; (c) it must not be partial or discriminatory; (d) it must not prohibit but may regulate trade; (e) it must be general and consistent with public policy; and (f) it must not be unreasonable.

There is no doubt that under PD 704, fishing, fishery and aquatic resources in municipal waters are under the jurisdiction of the municipal or city government concerned. However, the same decree imposes a mandatory requirement to submit for approval ordinances to the Secretary of Agriculture for them to attain full force and effect. To say that Sec. 4 of PD 704 was impliedly repealed by the LGC is gratuitous for, if its was intent of the legislature to dispense with the approval, it would have expressly repealed Sec. 4, when in fact it did so with Secs. 16 and 29 of PD 704. An implied repeal is not favored. There is no conflict between the LGC and PD 704 in this respect because, while LGUs are empowered to enact ordinances, they are subject to certain limitations, the approval by the Secretary being one of them.

It is true that police power can be exercised the general welfare clause. But while such power is inherent in a state, it is not so in LGUs. There must be a legislative grant which necessarily sets the limits for the exercise thereof. In this case, the LGC provides the standard and limitations for the exercise of police power. Under Sec. 3, par. (i), LGC, the operative principles of decentralization upon the environment and natural resources are not absolute when it is provided therein that LGUs “shall share with the national government the responsibility in the management and maintenance of ecological balance within their territorial jurisdiction, subject to the provisions of this Code and national policies.” The latter refer to existing policies which the DENR and other national agencies concerned with environment may implement at any given moment. This is the reason why the LGC did not repeal Sec. 4, PD 704 requiring prior submission to and approval by the DA Secretary.

The power devolved upon the municipality under the LGC is the enforcement of fishery laws and not the enactment thereof. Municipalities may only make ordinances pursuant to the provisions of national laws. Thus, the LGC only provides that LGUs may approve ordinances protecting the environment by specifically penalizing only those acts which endanger the environment such as dynamite fishing and other forms of destructive fishing which are already prohibited and penalized under laws on illegal fishing.

The ordinances may also be struck down for being not only prohibitory legislation but also as unauthorized exercise of delegation of powers. The purpose of protecting the environment can be achieved by reasonable restrictions rather than by absolute prohibition. LGUs are not possessed with prohibitory powers but only regulatory powers under the general welfare clause. They cannot altogether prohibit fishing and selling of live fishes involving even lawful methods of fishing. The prohibitions are tantamount to establishing a closed season which authority is not among those powers vested by the LGC. Such authority is vested upon the DA Secretary and in the DENR Secretary under national laws. Hence, any memorandum of agreement which might have been executed by the DA or the DENR on this matter is undue delegation.

Even resort to the SEP for Palawan Act (RA 7611) is untenable because it does not grant additional powers to the LGUs.

Finally, the prohibitions set forth in the questioned ordinances are not germane to the accomplihment of their goals. The city ordinance is aimed to free effectively the marine resources of Puerto Princesa from cyanide and other noxious substances but the means to achieve the objective borders on the excessive and irrational, for the effect would absolutely ban the shipment of live fishes and lobsters out of the city for five years without prohibiting cyanide fishing itself. The purpose of the provincial resolution and ordinance is to protect and preserve all marine coral-dwelling organisms from devastation and destruction by illegal fishing but has overstepped the reasonable limits and boundaries of its raison d’ etre in absolutely prohibiting even those lawfully executed acts done in the pursuit of legitimate occupation. This is plain arbitrariness masquerading as police power.

NOTES: 1. Certiorari is a procedural remedy to nullify or modify the act or proceedings of a court or any officer or body with quasi-judicial powers. Under Sec. 1, Rule 65 of the Rules of Court, the following elements must be present to avail of this remedy: (a) the tribunal, board, or officer has acted without or in excess of jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction; and (b) there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law.

2. Under Sec. 1, Rule 63 of the Rules of Court, a Declaratory Relief is a Special Civil Action that may be brought by any person who may be affected by any law, regulation, executive order or ordinance before any breach or violation is done. The action is actually a prayer for the court for the proper construction/interpretation of the legal instrument in question, or for the declaration of its nullity, or for the declaration of the petitioner’s rights or obligations thereunder.

3. Sec. 16, RA 8550, provides that the municipal/city government may enact appropriate ordinances for the management, conservation, development, protection, utilization, and disposition of all fish and fishery/aquatic resources within their municipal waters, and also in accordance with the National Fisheries Policy. The ordinances enacted by the municipality and component city shall be reviewed pursuant to the LGC by the sanggunian of the province. The provisions of Chapter III, Article I, RA 8550, do not mention among the powers of the DA Undersecretary for Fisheries and Aquatic Resources nor of BFAR the approval of local ordinances.