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.
CONCURRING OPINION
MENDOZA, J.,
I fully concur in the opinion of the Court written by Justice Davide. I write separately to emphasize two points which I believe are important. The first is the need to uphold the presumption of validity of the ordinances in this case in view of the total absence of evidence to undermine their factual basis. The second is the need not to allow shortcircuiting of the normal process of adjudication on the mere plea that unless we take cognizance of petitions like this, by-passing the trial courts, alleged violations of constitutional rights will be left unprotected, when the matter can very well be looked into by trial courts and in fact should be brought there.
The ordinances in question in this case are conservation measures which the local governments of Palawan have adopted in view of the widespread destruction caused by cyanide fishing of corals within their territorial waters. 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. Their invalidation at this point can result in the untimely exoneration of otherwise guilty parties on the basis of doubtful constitutional claims.
Ordinance No. 2-93, which the Sangguniang Panlalawigan of Palawan adopted in 1993, prohibits, for a period of five years, the “catching, gathering, possessing , buying, selling and shipment” of live fish and lobsters. As originally enacted, the prohibition applied to eight species of fish and lobsters caught in the waters of Palawan, anmely, “1. Family: Scaridae (Mameng), 2. Epinephelus Fasciatus (Suno), 3. Cromileptes altivelis (Panther or Señorita), lobster (below 200 grams and spawning), 4. Tridacna Gigas (Giant Clams or Taklobo and other species), 5. Pinctada Margaritifera (Mother Pearl Oysters), 6. Penaeus Monodon (Tiger Prawn- breeder size or mother), 7. Epinephelus Suillus (Loba or Green Grouper) and 8. Family: Balistidae (Tropical Aquarium Fishes).”1 Later, however, the ordinance was amended to limit the ban to three species only, namely: mameng (scaridae), panther or señorita (cromileptes altivelis) and ornamental or aquarium fishes (balistidae). Violation of the ordinance is punishable by a fine of P5,000.00 and/or imprisonment of not less than 6 nor more than 12 months and confiscation of the paraphernalia and equipment used in the commission of the offense.2
Ordinance No. 2-93 was adopted by the Sangguniang Panlalawigan on the basis of a 1992 study submitted by the Department of Agriculture,3 showing that, as a result of the use of cyanide and other noxious substances for fishing, only 5% of the coral reefs in the Province of Palawan remained in excellent condition as fish sanctuaries and habitats, while 75% was heavily damaged.
The rampant use of cyanide has been encouraged by the lucrative trade in live fishes which are shipped not only to Manila but also abroad, principally to Hongkong, Taiwan and Malaysia. The fishes are sold to gourmet restaurants because of the great demand for exotic food, to aquariums and to pet shops. In its issue of July 19, 1993, Time Magazine4 reported that the illicit trade in live animals is the third biggest contraband business in the world, after drugs and arms, and identified the Philippines as a major source of tropical fishes for the global traffic in live fishes.
The use of cyanide enables fishermen to catch fish alive and in commercial quantity in a way not possible with the use of such traditional methods as hook and line, fish traps, baklad and the like, which allows only limited catch and often results in injuries to fishes and the loss of their scales, thereby reducing their survival for transportation abroad.5 Cyanide does not kill fish but only stuns them. The stunned creatures are then scooped up and placed in containers ready for shipment across borders, national and transnational. What cyanide does, however, is poison the fragile reefs and cause them to die and cease as fish habitats.6
Concern over the use of cyanide in fishing all its ill effect on the marine environment also prompted the Sangguniang Panlungsod of Puerto Princesa to pass Ordinance No. 15-92, which makes it unlawful for any person or business enterprise or company “to ship out from Puerto Princesa City to any point of destinations either via aircraft or seacraft of any live fish and lobster except SEA BASS, CATFISH, MUDFISH and MILKFISH FRIES.”7 The ban is for five years, from January 1, 1993 to January 1, 1998. The penalty for violation of the ordinance is a fine of not more than P5,000.00 or imprisonment of not more than 12 months.8
To enforce the ordinance, the mayor of Puerto Princesa ordered the inspection of cargoes of live fish and lobsters leaving the city by air or sea. Inspectors are to ascertain if the shipper has a permit issued by the office of the city mayor. Any cargo of live fish and lobster without a permit from the mayor’s office will be “held for proper disposition.”9
The ordinances in question are police power measures, enacted by the Province of Palawan and the City of Puerto Princesa, pursuant to the Local Government Code of 1991 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…”10 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, namely, the destruction of aquatic resources in the Province of Palawan. For this reason the Solicitor General asked for leave to withdraw from this case. On the other hand, the Department of Agriculture submitted its report on the extent of the devastation of coral reefs caused by illegal fishing to the Sangguniang Panlalawigan of Palawan and thereby left the solution of the problem to be worked out by the local authorities. It would therefore set back the policy of decentralization were this Court to sustain such a claim.
Indeed, petitioners’ challenge to the validity of the ordinances does not rest on the claim that 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 the Constitution of the Philippines. For support, petitioners invoke the following constitutional provisions:
ART. XII, §2….
The state shall protect the nation’s marine wealth in its archipelagic waters, territorial sea, and exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens.
The Congress may, by law, allow small scale utilization of natural resources by Filipino citizens, as well as cooperative fish farming, with priority to subsistence fishermen and fishworkers in rivers, lakes, bays and lagoons.
ART. XIII, §1: The Congress shall give highest priority to the enactment of measures that protect and enhance the right of all the people to human dignity, reduce social, economic, and political inequalities, and remove cultural inequalities by equitably diffusing wealth and political power for the common good.
Id., §7: The State shall protect the rights of subsistence fishermen, especially of local communities, to the preferential use of the communal marine and fishing resources, both inland and offshore. It shall provide support to such fishermen through appropriate technology and research, adequate financial, production, and marketing assistance, and other services. The State shall also protect, develop, and conserve such resources. The protection shall extend to offshore fishing grounds of subsistence fishermen against foreign intrusion. Fishworkers shall receive a just share from their labor in the utilization of marine and fishing resources.
I cannot see how these provisions can, in any way, lend support to petitioners’ contention that the ordinances violate the Constitution. These provisions refer to the duty of the State to protect the nation’s marine resources for the exclusive use 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 the Province of Palawan. It was precisely to implement Art. XII, §2 that the ordinances in question were enacted. For, without these marine resources, it would be idle to talk of the rights of subsistence fishermen to be preferred in the use of these resources.
It has been held that “as underlying question of fact may condition the constitutionality of legislation of this character, the presumption of constitutionality must prevail in the absence of some factual foundation of record for overthrowing the statute.”11 No evidence has been presented by petitioners to overthrow the factual basis of the ordinances--- that, as a result of the use of cyanide and other noxious substances for fishing, only 5% of the coral reefs in Palawan was in excellent condition, that 75% had been heavily destroyed, and that because of the thriving market for live fish and lobster here and abroad there was rampant illicit trade in live fish.
Nor has it been shown by petitioners that the local legislation here involved is arbitrary or unreasonable. It has been held: “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 court are both incompetent and unauthorized to deal….”12
It is contended that neither Provincial Ordinance No. 2-93 nor City Ordinance No. 15-92 prohibits cyanide fishing and therefore the prohibition against catching certain species of fish and their transportation is “excessive and irrational.” It is further argued that the ban is unreasonable because it is not limited to cyanide fishing but includes even legitimate fishing.
The ban on the use of cyanide and other noxious substances is already provided for in other legislation. P.D. No. 534, §2 punishes fishing by means of “explosives, obnoxious or poisonous substances or by the use of electricity.” Consequently, the ordinances in question can be seen as a necessary corollary of the prohibition against illegal fishing contained in this Decree. By prohibiting the catching of certain fishes and lobsters, Ordinance No. 2-93 in effect discourages cyanide fishing because, as already stated, cyanide is preferred in catching fishes because it does not kill but only stuns them and thus preserves them for export to the world market.
On the other hand, the claim that the ordinance sweeps overboardly by “absolutely prohibit[ing] the catching, gathering, buying and shipment of live fishes and marine coral resources by any and all means including those lawfully executed or done in the pursuit of legitimate occupation” misconceives the principal purpose of the ordinance, which is not so much to prohibit the use of cyanide for fishing as to rebuild corals because of their destruction by cyanide fishing. This is clear from the “whereas” clauses of Resolution No. 33, accompanying Ordinance No. 2-93:
WHEREAS, scientific and factual researches and studies disclose that only five (5) percent of the corals of our province remain to be in excellent condition as habitat of marine coral dwelling aquatic organisms;
WHEREAS, it cannot be gainsaid that the destruction and devastation of the corals of our province where principally due to illegal fishing activities like dynamite fishing, sodium cyanide fishing, use of other obnoxious substances and other related activities;
WHEREAS, there is an imperative and urgent need to protect and preserve the existence of the remaining excellent corals and allow the devastated ones to reinvigorate and regenerate themselves into vitality within the span of five (5) years;
WHEREAS, Sec. 468, Par. 1, Sub-Par. VI of R.A. 7160 otherwise known as the Local Government Code of 1991 empowers the Sangguniang Panlalawigan to protect the environment and impose appropriate penalties [for] acts which endanger the environment such as dynamite fishing and other forms of destructive fishing among others;
The principal aim of the ordinance is thus the preservation and rehabilitation of the corals. Only indirectly is it also concerned with prohibiting the use of cyanide. That this is the aim of the ordinance can also be inferred from the fact that the ban imposed by it on the catching and gathering of fishes is for a limited period (5 years) calculated to be the time needed for the growth and regeneration of the corals. Were the purpose of the ordinance the prohibition of the use of cyanide for fishing, the ban would not be for a limited period only but for all time.
I am not much moved by the plea that the ordinances deprive small fishermen of their means of livelihood and occupation. The ban imposed by Ordinance No. 2-93, as amended, covers only three species, i.e., mameng (scaridae), panther or señorita (cromileptes altivelis) and ornamental aquarium fishes (balistidae), which are prized in the black market. With respect to other species, it is open season for legitimate fishermen. On the other hand, the bvan imposed by Ordinance No. 15-92 allows the transportation and shipment of sea bass, catfish, mudfish and milkfish fries. The ban imposed by the two ordinances is limited to five years. It is thus limited both as to scope and as to period of effectivity. There is, on the other hand, the imperative necessity for measures to prevent the extinction of certain species of fish.
Indeed, the burden of showing that there is no reasonable relation between the end and the means adopted in this case is not on the local governments but on petitioners because of the presumption that a regulatory statute is valid in the absence of factual evidence to the contrary. As held in United States v. Salaveria,13 The presumption is all in favor of validity. … The councilors must, in the very nature of things, be familiar with the necessities of their particular municipality and with all the facts and circumstances which surround the subject, and necessitate action. The local legislative body, by enacting the ordinance, has in effect given notice that the regulations are essential to well being of the people… The Judiciary should not lightly set aside legislative action when there is not a clear invasion of personal or property rights under the guise of police regulation.”
Finally, petitioners question office Order no. 23, s. of 1993, of the city mayor of Puerto Princesa, for being allegedly vague. This order prohibits the transportation of fish outside the city without permit from the mayor’s office. Petitioners contend that the order does not state under what condition a permit may be granted and, consequently, leaves it to the absolute discretion of the mayor when to grant and when to deny a permit. The questioned paragraph of the order states:
The purpose of the inspection is to ascertain whether the shipper possessed the requires Mayor’s permit issued by this Office and the shipment id covered by invoice or clearance issued by the local office of the Bureau of Fisheries and Aquatic Resources and as to compliance with all other existing rules and regulations on the matter.
This contention is untenable.ℒαwρhi৷ As the office order is intended to implement City Ordinance No. 15-92, resort must be made to the ordinance in order to determine the scope of such office order. As already noted, the ordinance prohibits the shipment out of Puerto Princesa 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 transportation of fishes which are covered by the ban, but not for those not covered by it. This is the common sense meaning of the office order in question. Criminal laws must be precisely drawn, but, as Justice Holmes once said, “We agree to all the generalities about not supplying criminal laws with what they omit, but there is no canon against using common sense in construing laws as saying what they obviously mean.”14
One final point. This case was brought to this Court on the bare bones of the ordinances, on the mere claim of the petitioner Alfredo Tano and his 83 copetitioners that they are subsistence fishermen. The constitutional protection refers to small fishermen who depend on the sea for their existence. Ten of the petitioners, led by Alfredo Tano, are accused in the Municipal Circuit Trial Court of possession of the species covered by Provincial Ordinance No. 2-93, While two, Roberto Lim and Virginia Lim, are charged with violation of the two ordinances in the City Prosecutor’s Office. There is no telling from the records of this case whether petitioners are subsistence fishermen or simply impecunious individuals selling their catch to the big businessmen. The other petitioners are admittedly fish traders, members of the association of airline shippers, to whom the constitutional provisions obviously do not apply.
The judicial invalidation of the ordinances in this case could undermine the on-going trial of some of petitioners. Instead of leaving the determination of the validity of the ordinances to the trial court, where some of petitioners are facing charges, this Court will be shortcircuiting the criminal process by prematurely passing upon the constitutional questions and directly on the criminal liability of some of the petitioners. This is a task which should await the development of evidence of record.
Indeed because of the unsatisfactory abstractness of the record, this case should not have been brought here. The mere fact that some of petitioners are facing prosecution for validation of the ordinances is no reason for entertaining their suit. Our jurisdiction is limited to cases and controversies. Who are the petitioners? What is the impact of the ordinance on their economic situation? Are the factual bases of the two ordinances supported by evidence? These questions must be raised in the criminal trial or in a suit brought in the trial court so that facts necessary to adjudicate the constitutional questions can be presented. Nothing can take place of the flesh and blood of litigation to assess the actual operation of a statute and thus ground the judicial power more firmly.
Petitioners justify the filing of present action in this Court on the ground that constitutional questions must be raised at the earliest time. That is true, but it does not mean that the questions should be presented to the Supreme Court first hand. Moreover, the rule is not absolute. Constitutional questions like those invoked by petitioners can be raised any time, even in a motion for reconsideration, if their resolution is necessary to the decision of an actual case or controversy, as our recent resolution15of the constitutionality of R.A. No. 7659, reimposing the death penalty, amply demonstrates.
Footnotes
1 §§I and III.
2 §IV.
3 Quoted in Respondent’s Comment on the Petition, p. 7.
4 Toufexis, All God’s Creatures Priced to Sell, Time, July 19, 1993, p. 32.
5 Supra note 3 at p. 8.
6 Supra note 4 at p. 34.
7 §4.
8 §5.
9 Office Order No. 33, s. 1993.
10 R.A. No. 7160, §458 (a) (1) (vi) and §468 (a) (1) (vi).
11 Ermita-Malate Hotel and Motel Operators Ass’n v. City Mayor, 20 SCRA 849, 857 (1967), citing O’Gozman & Young v. Hartford Fire Ins. Co., 282 U.S. 255, 257, 75 L. Ed. 324, 328 (1931).
12 Nebbia v. New York, 291 U.S. 502 (1934). See also Lansang v. Garcia, 42 SCRA 448, 481 (1971); People v. Ferrer, 48 SCRA 382 (1972).
13 39 Phil. 102, 111 (1918).
14 Roschen v. Ward, 279 U.S. 337, 339, 73 L. Ed. 722, 728 (1929), quoted by this Court in Ermita-Malate Hotel and Motel Operators Ass’n v. City Mayor, 20 SCRA at 867.
15 People v. Echegaray, G.R. No. 117472, Feb. 7, 1997 (death penalty statute valid).
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