G.R. No. 110249 - Dissenting Opinion




G.R. No. 110249, August 21, 1997, ♦ Decision, Davide, Jr., [J] ♦ Dissenting Opinion, Bellosillo, [J] ♦ Concurring Opinion, Mendoza, [J] EN BANC [ G.R. No. 110249, August 21, 1997 ] ALFREDO TANO, BALDOMERO TANO, DANILO TANO, ROMUALDO TANO, TEOCENES MIDELLO, ANGEL DE MESA, EULOGIO TREMOCHA, FELIPE ONGONION, JR., ANDRES LINIJAN, ROBERT LIM, VIRGINIA LIM, FELIMON DE MESA, GENEROSO ARAGON, TEODORICO ANDRE, ROMULO DEL ROSARIO, CHOLITO ANDRE, ERICK MONTANO, ANDRES OLIVA, VITTORIO SALVADOR, LEOPOLDO ARAGON, RAFAEL RIBA, ALEJANDRO LEONILA, JOSE DAMACINTO, RAMIRO MANAEG, RUBEN MARGATE, ROBERTO REYES, DANILO PANGARUTAN, NOE GOLPAN, ESTANISLAO ROMERO, NICANOR DOMINGO, ROLDAN TABANG, PANGANIBAN, ADRIANO TABANG, FREDDIE SACAMAY, MIGUEL TRIMOCHA, PACENCIO LABABIT, PABLO H. OMPAD, CELESTINO A. ABANO, ALLAN ALMODAL, BILLY D. BARTOLAY, ALBINO D. LIQUE, MELCHOR J. LAYSON, MELANI AMANTE, CLARO E. YATOC, MERGELDO B. BALDEO, EDGAR M. ALMASET A., JOSELITO MANAEG, LIBERATO ANDRADA, JR., ROBERTO BERRY, RONALD VILLANUEVA, EDUARDO VALMORIA, WILDREDO MENDOZA, NAPOLEON BABANGA, ROBERTO TADEPA, RUBEN ASINGUA, SILVERIO GABO, JERRY ROMERO, DAVID PANGAGARUTAN, DANIEL PANGGARUTAN, ROMEO AGAWIN, FERNANDO EQUIZ, DITO LEQUIZ, RONILO ODERABLE, BENEDICTO TORRES, ROSITO A. VALDEZ, CRESENCIO A. SAYANG, NICOMEDES S. ACOSTA, ERENEO A. SEGARINO, JR., WILDREDO A. RAUTO, DIOSDADO A. ACOSTA, BONIFACIO G. SISMO, TACIO ALUBA, DANIEL B. BATERZAL, ELISEO YBAÑEZ, DIOSDADO E. HANCHIC, EDDIE ESCALICAS, ELEAZAR B. BATERZAL, DOMINADOR HALICHIC, ROOSEVELT RISMO-AN, ROBERT C. MERCADER, TIRSO ARESGADO, DANIEL CHAVEZ, DANILO CHAVEZ, VICTOR VILLAROEL, ERNESTO C. YABANEZ, ARMANDO T. SANTILLAN, RUDY S. SANTILLAN, JODJEN ILUSTRISIMO, NESTOR SALANGRON, ALBERTO SALANGRON, ROGER L. ROXAS, FRANCISCO T. ANTICANO, PASTOR SALANGRON, BIENVENIDO SANTILLAN, GILBUENA LADDY, FIDEL BENJAMIN JOVELITO BELGANO, HONEY PARIOL, ANTONIO SALANGRON, NICASIO SALANGRON, & AIRLINE SHIPPERS ASSOCIATION OF PALAWAN, PETITIONERS, VS. GOV. SALVADOR P. SOCRATES, MEMBERS OF SANGGUNIAN PANLALAWIGAN OF PALAWAN, NAMELY, VICE-GOVERNOR JOEL T. REYES, JOSE D. ZABALA, ROSALINO R. ACOSTA, JOSELITO A. CADLAON, ANDRES R. BAACO, NELSON P. PENEYRA, CIPRIANO C. BARROMA, CLARO E. ORDINARIO, ERNESTO A. LLACUN, RODOLFO C. FLORDELIZA, GILBERT S. BAACO, WINSTON G. ARZAGA, NAPOLEON F. ORDONEZ AND GIL P. ACOSTA, CITY MAYOR EDWARD HAGEDORN, MEMBERS OF SANGGUNIANG PANLUNGSOD NG PUERTO PRINCESA, ALL MEMBERS OF BANTAY DAGAT, MEMBERS OF PHILIPPINE NATIONAL POLICE OF PALAWAN, PROVINCIAL AND CITY PROSECUTORS OF PALAWAN AND PUERTO PRINCESA CITY, AND ALL JUDGES OF PALAWAN, REGIONAL, MUNICIPAL AND METROPOLITAN, RESPONDENTS. DISSENTING OPINION BELLOSILLO, J.: It is settled rule that where the provisions of the law are clear and unambiguous there is no room for interpretation. The duty of the court is only to apply the law. The exception to such rule cannot be justified on the sole basis of good motives or noble objectives. For it is also basic that the end does not justify the means. The petition raises significant constitutional questions. While petitioners apparently instituted the action to enjoin their criminal prosecution, the issue boils down to whether the subject ordinances of Palawan and Puerto Princesa are valid and enforceable as to authorize the criminal prosecution of those charged with violation thereof. Notwithstanding the procedural limitations strictly applied in the majority opinion to render the petition dismissible on grounds of prematurity and lack of real interest in the controversy, the case clearly falls under the exceptions allowed by law. The petition, I submit, can be properly treated as a special civil action for certiorari and prohibition under Rule 65 of the Rules of Court to correct errors of jurisdiction committed by the lower court arising from the implementation of a void ordinance. Even if the purpose of the petition is for declaratory relief, if the petition has far-reaching implication and raises questions that should be resolved as they involve national interest, it may be treated as a special civil action under Rule 65.1 The mere absence of a prior motion to quash the Information in the trial court should not prevent the accused, petitioners herein, from seeking to render null and void the criminal proceedings below. In criminal cases, when the constitutionality or validity of a law or ordinance is essentially involved, the same may be raised at any stage of the proceedings. It can also be considered by the appellate court at any time if it involves the jurisdiction of the lower court.2 Further, under Sec. 8, Rule 117, of the Rules on Criminal Procedure, the failure of the accused to assert any ground of a motion to quash before he pleads to the Complaint or Information either because he did not file a motion to quash or failed to allege the same in the motion shall be deemed a waiver of the grounds of a motion to quash, except the grounds of no offense charged, lack of jurisdiction over the offense charged, extinction of the offense or penalty, and jeopardy. 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. Petitioners have been criminally charged and arrested for alleged violation of the ordinances in question. Consequently, unless the trial court is enjoined from continuing with the proceedings, petitioners are in danger of being convicted and punished under ordinances which they are allege to be invalid and ineffective. In fact this Court initially recognized the real interest of petitioners in instituting the action when it issued a restraining order directing Judge Angel R. Miclat to cease and desist until further orders from proceeding with the arraignment and pre-trial of People v. Alfredo Tano, et al., Crim. Case No. 11223, for violation of Resolution No. 2-93 of the Sangguniang Panlalawigan of Palawan, and Ordinance No. 15-92 of the Sangguniang Panlungsod of Puerto Princesa City. The question to be resolved is whether Resolution No. 2-93, Office Order No. 23 and Ordinance No. 15-92 are constitutional, valid and enforceable. By considering the purpose and objective of the ordinances as laudable, the majority adopts the affirmative view in consonance with the general welfare clause and principle of devolution well-rooted in the Local Government Code of 1991. While I agree with the majority that the local leaders of Palawan and Puerto Princesa City be commended for their efforts to uplift and protect the environment and natural resources within their areas, the general welfare clause is not the sole criterion to determine the validity or constitutionality of the ordinances. In Magtajas v. Pryce Properties Corporation,3 we reiterated that 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. As admitted by the majority, among our existing statutes on fishing and fishery or aquatic resources are P.D. Nos. 704, 1015 and 1219. P.D. No. 704 is titled “Revising and Consolidating All Laws and Decrees Affecting Fishing and Fisheries.” With the enactment of the Local Government Code of 1991, only Secs.16 and 29 of P.D. No. 704 were expressly repealed. All the rest of the provisions of P.D. No. 704 remain valid and effective, Sec. 4 of which is enlightening— SEC. 4. Jurisdiction of the Bureau (of Fisheries and Aquatic Resources).--- The Bureau shall have jurisdiction and responsibility in the management, consevation, development, protection, utilization and disposition of all fishery and aquatic resources of the country except municipal waters which shall be under the municipal or city government concerned: Provided, That fishpens and seaweed culture in municipal centers shall be under the jurisdiction of the Bureau: Provided, further, That all municipal or city ordinances and resolutions affecting fishing and fisheries and any disposition thereunder shall be submitted to the Secretary for appropriate action and shall have full force and effect only upon his approval. The Bureau shall also have authority to regulate and supervise the production, capture and gathering of fish and fishery/aquatic products. There is no doubt that under P.D. No. 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 directing municipal or city governments to submit ordinances enacted pertinent to fishing and fishery resources to the Secretary of Agriculture who now has control and supervision over the Bureau of Fisheries and Aquatic Resources (BFAR). The ordinances will attain full force and effect only upon the approval of the Secretary of Agriculture. Ordinance 15-92 of Puerto Princesa City, admittedly, was not submitted to the Secretary of Agriculture through the BFAR for approval. Such failure of compliance with the law prevented it from becoming valid and effective. Consequently, Office Order No. 23 of the Mayor of Puerto Princesa City which seeks to implement and enforce Ordinance No. 15-92 is also ineffective as there is nothing to implement. To say that Sec. 4 of P.D. No. 704 was impliedly repealed by the Local Government Code is gratuitous. For, if it was the intention of the legislature to dispense the requirement of prior approval by the Secretary of Agriculture of ordinances pertinent to fishery resources, it would have expressly repealed Sec. 4 when, in fact, it did so with Secs. 16 and 29 of P.D. No. 704. Cases abound holding that a repeal by implication is not presumed or favored considering that the legislature is presumed to be aware of existing laws; ordinarily, if it intends to revoke a statute it would manifest such intention in express terms.4 Before such a repeal is deemed to exist it should be shown that the statutes or statutory provisions deal with the same subject matter and that the latter be inconsistent with the former. There must be a showing of repugnancy clear and convincing in character. The language used in the latter statute must be such as to render it irreconcilable with what has been formerly enacted. An inconsistency that falls short of that standard does not suffice. In fact, there is no inconsistency between the Local Government Code and P.D. No. 704 as amended. While the Local Government Code vests power upon the local government to enact ordinances for the general welfare of its inhabitants, such power is subject to certain limitations imposed by the Code itself and by other statutes. When the legislature failed to repeal Sec. 4 of P.D. No. 704 it accepted and recognized a limitation on the power of the local government to enact ordinances relative to matters affecting fishery and aquatic resources. A reading of particular provisions of the Local Government Code itself will reveal that devolution on the powers of the local government pertaining to the protection of environment is limited and not all-encompassing, as will be discussed in the succeeding paragraphs. Further, while the Local Government Code is a general law on the powers, responsibilities and composition of different local government units, P.D. No. 704 is a special law dealing with the protection and conservation of fishing and aquatic resources including those in the municipal waters. Hence, the special law should prevail over the general law. There is also P.D. No. 1015 which vests upon the Secretary of Agriculture the authority to establish closed seasons. Another existing law on fisheries which has not been repealed by the Local Government Code is P.D. No. 1219, which provides for the exploration, exploitation, utilization and conservation of coral resources. Section 4 thereof provides that the decree shall be implemented by the Secretary of Environment and Natural Resources who shall have jurisdiction and responsibility in the exploration, exploitation, utilization and conservation of coral resources. Section 6 authorizes the Secretary to issue special permit to any person or institution to gather in limited quantities any coral for scientific or educational purposes. Section 10 empowers the Secretary to promulgate rules and regulations for the implementation of this law. It is true that police power can be exercised through the general welfare clause. But, while police power is inherent in a state, it is not so in municipal corporations or local governments. In order that a local government may exercise police power, there must be a legislative grant which necessarily sets the limits for the exercise of power.5 In this case, Congress has enacted the Local Government Code which provides the standards as well as the limitations in the exercise of the police power by the local government unit. Section 2 of the Local Government Code provides for a system of decentralization whereby local government units are given more powers, authority, responsibilities and resources, and the process shall proceed from the national government to the local government units. However, under Sec. 3, par. (i), of the Local Government Code, the operative principles of decentralization upon the environment and natural resources are not absolute when it is provided therein that “local government units 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 national policies mentioned here refer to existing policies which the DENR and other government agencies concerned with the environment may implement at any given moment. The national policies are embodied in existing laws, rules and regulations pertaining to environment and natural resources, such as P.D. Nos. 704 and 1219 relating to fishery resources. The above provision was crafted to make sure that local government enactments do not supplant or negate national government policies on environment.6 This is precisely the reason why the Local Government Code did not repeal Sec. 4 of P.D. No. 704 requiring prior submission to and approval by the Secretary of Agriculture of ordinances relative to fishery and aquatic resources. Needless to stress, the approval of the Secretary is necessary in order to ensure that these ordinances are in accordance with the laws on fisheries and national policies. Likewise, the jurisdiction of the Secretary of Environment and Natural Resources over coral resources under P.D. No. 1219 remains. The core of the devolution adopted by the Local Government Code is found in Sec. 17 thereof which reiterates the basic services and facilities to be rendered by the local governments. With respect to the protection and conservation of fisheries, Sec. 17, par. 2 (I), specifically provides that the municipality shall conduct “extension and on-site research services and facilities related to agriculture and fishery activities which include dispersal of livestock and poultry, fingerlings and other seeding materials for aquaculture xxxx and enforcement of fishery laws in municipal waters including the conservation of mangroves xxxx” The power devolved upon the municipality under the Local Government Code is the enforcement of existing fishery laws of the State and not the enactment thereof. While a local government unit may adopt ordinances upon subjects covered by law or statute, such ordinances should be in accordance with and not repugnant to the law.7 In view thereof, ordinances which may be enacted by the municipality or city should be pursuant to the provisions of P.D. Nos. 704, 1015 and 1219. Thus, under the provisions of Secs. 447, par. 1 (vi), 458, par. 1 (vi) and 468, par. 1 (vi), the municipality, city and province respectively 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 under P.D. Nos. 704 and 1219, and other laws on illegal fishing.8 The questioned ordinances may also be struck down for being not only a prohibitory legislation but also an unauthorized exercise of delegation of powers. An objective, however worthy or desirable it may be, such as the protection and conservation of our fisheries in this case, can be attained by a measure that does not encompass too wide a field. The purpose can be achieved by reasonable restrictions rather than by absolute prohibition. Local governments are not possessed with prohibitory powers but only regulatory powers under the general welfare clause.9 They cannot therefore exceed the powers granted to them by the Code by altogether prohibiting fishing and selling for five (5) years all live fishes through Ordinance No. 15-92 and coral organisms through Ordinance No. 2-93 involving even lawful methods of fishing. These prohibitions are tantamount to the establishment of a closed season for fish and aquatic resources which authority is not among those powers vested by the Local Government Code to the local government units. For the authority to establish a closed season for fisheries is vested upon the Secretary of Agriculture by virtue of P.D. Nos. 704 and 1015 and in the Secretary of Environment and Natural Resources pursuant to P.D. No. 1219 in relation to coral resources. The power of the local governments is confined and limited to ensuring that these national fishery laws are implemented and enforced within their territorial jurisdictions. Hence, any memorandum of agreement which might have been executed by the Department of Agriculture or Department of Environment and Natural Resources granting additional powers and functions to the local governments which are not vested upon the latter by the Local Government Code because such powers are covered by existing statutes, is an undue delegation of power and, consequently, null and void. The majority also cites R.A. No. 7611, otherwise known as the Strategic Environmental Plan (SEP) for Palawan Act, as proof of the power of the local governments of Palawan and Puerto Princesa City to issue the assailed ordinances. Although the objectives of R.A. No. 7611 and of the ordinances are one and the same, i.e., the protection, conservation and development of natural resources, the former does not grant additional powers to the local governments pertaining to the environment. In fact, the law adopts a comprehensive framework which shall serve to direct and guide local governments and national government agencies in the implementation of programs and projects affecting Palawan. With the enactment of this Act, the local governments are mandated to coordinate and align their developmental plans, projects and budgets in accord with the framework of the SEP. It can be said that this is another limitation on the exercise of police power by the local governments of Palawan and Puerto Princesa City because the governance, implementation and policy direction of the SEP shall be exercised by the Palawan Council for Sustainable Development (PCSD) which is under the Office of the President. Finally, I find reasonable Resolution No. 2-93 of Palawan and Ordinance No. 15-92 of Puerto Princesa City. The prohibitions set forth are not germane to the accomplishment of their goals.ℒαwρhi৷ Ordinance No. 15-92 is aimed to free effectively the marine resources of Puerto Princesa from cyanide and other obnoxious substances. But the means to achieve this objective borders on the excessive and irrational, for the edict would absolutely ban the shipment of live fishes and lobsters out of the city for a period of five (5) years without prohibiting cyanide fishing itself which is the professed goal of the ordinance. The purpose of the Resolution No. 2-93, on the other hand, is to protect and preserve all marine coral-dwelling organisms from devastation and destruction by illegal fishing activities, e.g., dynamite fishing, sodium cyanide fishing, and the use of other obnoxious substances. But in absolutely prohibiting the catching, gathering, buying and shipment of live fishes and marine coral resources by any means including those lawfully executed or done in the pursuit of legitimate occupation, the ordinance overstepped the reasonable limits and boundaries of its raison d ‘etre. This I cannot help viewing as plain arbitrariness masquerading as police power. For the consequent deprivation of the main source of livelihood of the people of Palawan can only be regarded as utter deprivation of this awesome power of the State. For all the foregoing, I vote to grant the petition. Footnotes 1 Alliance of Government Workers v. Minister of Labor, G.R. No. 60403, 3 August 1983, 124 SCRA 1. 2 San Miguel Brewery, Inc. v. Magno, No. L-2187, 29 September 1967, 21 SCRA 292. 3 G.R. No. 111097, 20 July 1994, 234 SCRA 255. 4 Almeda v. Florentino, No. –23800, 21 December 1965, 15 SCRA 514. 5 Martin, Ruperto G., Public Corporations, Rev. Ed., p. 46, citing Elliot Municipal Corporations, p. 33. 6 Pimentel, Aquilino, The Local Government Code of 1991, Key to National Development, 1993, p. 19. 7 See Note 5, p. 69, citing U.S. v. Chan Tienco, 25 Phil. 89 (1913). 8 See Note 6, p. 73. 9 Cruz v. Paras, Nos. L-42571-72, 25 July 1983, 123 SCRA 569. The Lawphil Project - Arellano Law Foundation