Environmental Cases 3

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EN BANC

[G.R. No. 110249. August 21, 1997]

ALFREDO TANO, BALDOMERO TANO, DANILO TANO, ROMUALDO TANO, TEOCENESMIDELLO, ANGEL DE MESA, EULOGIO TREMOCHA, FELIPE ONGONION, JR., ANDRESLINIJAN, 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, ALEJANDROLEONILA, JOSE DAMACINTO, RAMIRO MANAEG, RUBEN MARGATE, ROBERTO REYES,DANILO PANGARUTAN, NOE GOLPAN,ESTANISLAO ROMERO, NICANOR DOMINGO,ROLDAN TABANG, PANGANIBAN, ADRIANO TABANG, FREDDIE SACAMAY, MIGUELTRIMOCHA, PACENCIO LABABIT, PABLO H. OMPAD, CELESTINO A. ABANO, ALLANALMODAL, BILLY D. BARTOLAY, ALBINO D. LIQUE, MELCHOR J. LAYSON, MELANIAMANTE, CLARO E. YATOC, MERGELDO B. BALDEO, EDGAR M. ALMASET A., JOSELITOMANAEG, LIBERATO ANDRADA, JR., ROBERTO BERRY, RONALD VILLANUEVA,EDUARDO VALMORIA, WILDREDO MENDOZA, NAPOLEON BABANGA, ROBERTOTADEPA, RUBEN ASINGUA, SILVERIO GABO, JERRY ROMERO, DAVID PANGAGARUTAN,DANIEL PANGGARUTAN, ROMEO AGAWIN, FERNANDO EQUIZ, DITO LEQUIZ, RONILOODERABLE, 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, DANIELCHAVEZ, 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 JOVELITOBELGANO, HONEY PARIOL, ANTONIO SALANGRON, NICASIO SALANGRON, & AIRLINESHIPPERS 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 PUERTOPRINCESA, ALL MEMBERS OF BANTAY DAGAT, MEMBERS OF PHILIPPINE NATIONALPOLICE OF PALAWAN, PROVINCIAL AND CITY PROSECUTORS OF PALAWAN and PUERTOPRINCESA CITY, and ALL JUDGES OF PALAWAN, REGIONAL, MUNICIPAL ANDMETROPOLITAN, respondents.

D E C I S I O NDAVIDE, JR., J.:

Petitioners caption their petition as one for “Certiorari, Injunction With Preliminary MandatoryInjunction,with Prayer for Temporary Restraining Order” and pray that this Court: (1) declare asunconstitutional: (a) Ordinance No. 15-92, dated 15 December 1992, of the Sangguniang Panlungsod of Puerto Princesa; (b) Office Order No. 23, Series of 1993, dated 22 January 1993, issued by ActingCity Mayor Amado L. Lucero of Puerto Princesa City; and (c) Resolution No. 33, Ordinance No. 2,Series of 1993, dated 19 February 1993, of the Sangguniang Panlalawigan of Palawan; (2) enjoin theenforcement thereof; and (3) restrain respondents Provincial and City Prosecutors of Palawan and



Puerto Princesa City and Judges of Regional Trial Courts, Metropolitan Trial Courts[1] and MunicipalCircuit Trial Courts in Palawan from assuming jurisdiction over and hearing cases concerning theviolation of the Ordinances and of the Office Order.

More appropriately, the petition is, and shall be treated as, a special civil action for certiorari and prohibition.

The following is petitioners’ summary of the factual antecedents giving rise to the petition:

1. On December 15, 1992, the Sangguniang Panlungsod ng Puerto Princesa City enacted Ordinance No. 15-92 which took effect on January 1, 1993 entitled: “AN ORDINANCE BANNING THESHIPMENT OF ALL LIVE FISH AND LOBSTER OUTSIDE PUERTO PRINCESA CITY FROMJANUARY 1, 1993 TO JANUARY 1, 1998 AND PROVIDING EXEMPTIONS, PENALTIES ANDFOR OTHER PURPOSES THEREOF”, the full text of which reads as follows:

“Section 1. Title of the Ordinance. - This Ordinance is entitled: AN ORDINANCE BANNING THESHIPMENT OF ALL LIVE FISH AND LOBSTER OUTSIDE PUERTO PRINCESA CITY FROMJANUARY 1, 1993 TO JANUARY 1, 1998 AND PROVIDING EXEMPTIONS, PENALTIES ANDFOR OTHER PURPOSES THEREOF.

Section 2. Purpose, Scope and Coverage. - To effectively free our City Sea Waters from Cyanide andother Obnoxious substance, and shall cover all persons and/or entities operating within and outside theCity of Puerto Princesa who is are [sic] directly or indirectly in the business or shipment of live fishand lobster outside the City.

Section 3. Definition of terms. - For purpose of this Ordinance the following are hereby defined:

A. SEA BASS - A kind of fish under the family of Centropomidae, better known as APAHAP;

B. CATFISH - A kind of fish under the family of Plotosidae, better known as HITO-HITO;

C. MUDFISH - A kind of fish under the family of Orphicaphalisae better known as DALAG

D. ALL LIVE FISH - All alive, breathing not necessarily moving of all specie[s] use for food and for

aquarium purposes.E. LIVE LOBSTER - Several relatively, large marine crustaceans of the genus Homarus that are aliveand breathing not necessarily moving.

Section 4. It shall be unlawful [for] any person or any business enterprise or company to ship out fromPuerto Princesa City to any point of destination either via aircraft or seacraft of any live fish and lobster except SEA BASS, CATFISH, MUDFISH, AND MILKFISH FRIES.

Section 5. Penalty Clause. - Any person/s and or business entity violating this Ordinance shall be penalized with a fine of not more than P5,000.00 or imprisonment of not more than twelve (12)months, cancellation of their permit to do business in the City of Puerto Princesa or all of the hereinstated penalties, upon the discretion of the court.

Section 6. If the owner and/or operator of the establishment found vilating the provisions of thisordinance is a corporation or a partnership, the penalty prescribed in Section 5 hereof shall be imposedupon its president and/or General Manager or Managing Partner and/or Manager, as the case maybe[sic].

Section 7. Any existing ordinance or any provision of any ordinance inconsistent to [sic] this ordinanceis deemed repealed.

Section 8. This Ordinance shall take effect on January 1, 1993.

http://sc.judiciary.gov.ph/jurisprudence/1997/aug1997/110249.htm#_edn1




SO ORDAINED.”

xxx

2. To implement said city ordinance, then Acting City Mayor Amado L. Lucero issued Office Order No. 23, Series of 1993 dated January 22, 1993 which reads as follows:

“In the interest of public service and for purposes of City Ordinance No. PD426-14-74, otherwise

known as ‘AN ORDINANCE REQUIRING ANY PERSON ENGAGED OR INTENDING TOENGAGE IN ANY BUSINESS, TRADE, OCCUPATION, CALLING OR PROFESSION OR HAVING IN HIS POSSESSION ANY OF THE ARTICLES FOR WHICH A PERMIT IS REQUIREDTO BE HAD, TO OBTAIN FIRST A MAYOR’S PERMIT” and “City Ordinance No. 15-92, ANORDINANCE BANNING THE SHIPMENT OF ALL LIVE FISH AND LOBSTER OUTSIDEPUERTO PRINCESA CITY FROM JANUARY 1, 1993 TO JANUARY 1, 1998, you are herebyauthorized and directed to check or conduct necessary inspections on cargoes containing live fish andlobster being shipped out from the Puerto Princesa Airport, Puerto Princesa Wharf or at any port withinthe jurisdiction of the City to any point of destinations [sic] either via aircraft or seacraft.

The purpose of the inspection is to ascertain whether the shipper possessed the required Mayor’sPermit issued by this Office and the shipment is 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 existingrules and regulations on the matter.

Any cargo containing live fish and lobster without the required documents as stated herein must be heldfor proper disposition.

In the pursuit of this Order, you are hereby authorized to coordinate with the PAL Manager, the PPAManager, the local PNP Station and other offices concerned for the needed support and cooperation.Further, that the usual courtesy and diplomacy must be observed at all times in the conduct of theinspection.

Please be guided accordingly.”

xxx3. On February 19, 1993, the Sangguniang Panlalawigan, Provincial Government of Palawanenacted Resolution No. 33 entitled: “A RESOLUTION PROHIBITING THE CATCHING,GATHERING, POSSESSING, BUYING, SELLING AND SHIPMENT OF LIVE MARINE CORALDWELLING AQUATIC ORGANISMS, TO WIT: FAMILY: SCARIDAE (MAMENG), EPINEPHELUS FASCIATUS (SUNO). CROMILEPTES ALTIVELIS (PANTHER OR SENORITA),LOBSTER BELOW 200 GRAMS AND SPAWNING, TRADACNA GIGAS (TAKLOBO),PINCTADA MARGARITEFERA (MOTHER PEARL, OYSTERS, GIANT CLAMS AND OTHER SPECIES), PENAEUS MONODON (TIGER PRAWN-BREEDER SIZE OR MOTHER),EPINEPHELUS SUILLUS (LOBA OR GREEN GROUPER) AND FAMILY: BALISTIDAE(TROPICAL AQUARIUM FISHES) FOR A PERIOD FIVE (5) YEARS IN AND COMING FROM

PALAWAN WATERS”, the full text of which reads as follows:

“WHEREAS, scientific and factual researches [sic] and studies disclose that only five (5) percent of thecorals of our province remain to be in excellent condition as [a] habitat of marine coral dwellingaquatic organisms;

WHEREAS, it cannot be gainsaid that the destruction and devastation of the corals of our provincewere 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 theremaining excellent corals and allow the devastated ones to reinvigorate and regenerate themselves intovitality within the span of five (5) years;

WHEREAS, Sec. 468, Par. 1, Sub-Par. VI of the [sic] R.A. 7160 otherwise known as the LocalGovernment Code of 1991 empowers the Sangguniang Panlalawigan to protect the environment andimpose appropriate penalties [upon] acts which endanger the environment such as dynamite fishing and

other forms of destructive fishing, among others. NOW, THEREFORE, on motion by Kagawad Nelson P. Peneyra and upon unanimous decision of allthe members present;

Be it resolved as it is hereby resolved, to approve Resolution No. 33, Series of 1993 of theSangguniang Panlalawigan and to enact Ordinance No. 2 for the purpose, to wit:

ORDINANCE NO. 2Series of 1993

BE IT ORDAINED BY THE SANGGUNIANG PANLALAWIGAN IN SESSION ASSEMBLED:

Section 1. TITLE - This Ordinance shall be known as an “Ordinance Prohibiting the catching,

gathering, possessing, buying, selling and shipment of live marine coral dwelling aquatic organisms, towit: 1. Family: Scaridae (Mameng), 2. Epinephelus Fasciatus (Suno), 3. Cromileptes altivelis (Panther or Senorita), lobster below 200 grams and spawning), 4. Tridacna Gigas (Taklobo), 5. PinctadaMargaretefera (Mother Pearl, Oysters, Giant Clams and other species), 6. Penaeus Monodon (Tiger Prawn-breeder size or mother), 7. Epinephelus Suillus (Loba or Green Grouper) and 8. Family:Balistidae (Topical Aquarium Fishes) for a period of five (5) years in and coming from PalawanWaters.

Section II. PRELIMINARY CONSIDERATIONS

1. Sec. 2-A (Rep. Act 7160). It is hereby declared, the policy of the state that the territorial and political subdivisions of the State shall enjoy genuine and meaningful local autonomy to enable them to

attain their fullest development as self reliant communities and make them more effective partners inthe attainment of national goals. Toward this end, the State shall provide for [a] more responsive andaccountable local government structure instituted through a system of decentralization whereby localgovernment units shall be given more powers, authority, responsibilities and resources.

2. Sec. 5-A (R.A. 7160). Any provision on a power of [a] local Government Unit shall be liberalyinterpreted in its favor, and in case of doubt, any question thereon shall be resolved in favor of devolution of powers and of the lower government units. “Any fair and reasonable doubts as to theexistence of the power shall be interpreted in favor of the Local Government Unit concerned.”

3. Sec. 5-C (R.A. 7160). The general welfare provisions in this Code shall be liberally interpreted togive more powers to local government units in accelerating economic development and upgrading the

quality of life for the people in the community.4. Sec. 16 (R.A. 7160). General Welfare. - Every local government unit shall exercise the powersexpressly granted, those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its efficient and effective governance; and those which are essential to the promotion of the general welfare.

Section III. DECLARATION OF POLICY. - It is hereby declared to be the policy of the Province of Palawan to protect and conserve the marine resources of Palawan not only for the greatest good of themajority of the present generation but with [the] proper perspective and consideration of [sic] their





Finally, as Ordinance No. 2 of the Sangguniang Panlalawigan is null and void, the criminal cases basedthereon against petitioners Tano and the others have to be dismissed.

In the Resolution of 15 June 1993 we required respondents to comment on the petition, and furnishedthe Office of the Solicitor General with a copy thereof.

In their comment filed on 13 August 1993, public respondents Governor Socrates and Members of theSangguniang Panlalawigan of Palawan defended the validity of Ordinance No.2, Series of 1993, as avalid exercise of the Provincial Government’s power under the general welfare clause (Section 16 of the Local Government Code of 1991 [hereafter, LGC]), and its specific power to protect theenvironment and impose appropriate penalties for acts which endanger the environment, such asdynamite fishing and other forms of destructive fishing under Section 447 (a) (1) (vi), Section 458 (a)(1) (vi), and Section 468 (a) (1) (vi), of the LGC. They claimed that in the exercise of such powers, theProvince of Palawan had “the right and responsibilty… to insure that the remaining coral reefs, wherefish dwells [sic], within its territory remain healthy for the future generation.” The Ordinance, theyfurther asserted, covered only live marine coral dwelling aquatic organisms which were enumerated inthe ordinance and excluded other kinds of live marine aquatic organisms not dwelling in coral reefs; besides the prohibition was for only five (5) years to protect and preserve the pristine coral and allowthose damaged to regenerate.

Aforementioned respondents likewise maintained that there was no violation of due process and equal protection clauses of the Constitution. As to the former, public hearings were conducted before theenactment of the Ordinance which, undoubtedly, had a lawful purpose and employed reasonablemeans; while as to the latter, a substantial distinction existed “between a fisherman who catches livefish with the intention of selling it live, and a fisherman who catches live fish with no intention at all of selling it live,” i.e., “the former uses sodium cyanide while the latter does not.” Further, the Ordinanceapplied equally to all those belonging to one class.

On 25 October 1993 petitioners filed an Urgent Plea for the Immediate Issuance of a TemporaryRestraining Order claiming that despite the pendency of this case, Branch 50 of the Regional TrialCourt of Palawan was bent on proceeding with Criminal Case No. 11223 against petitioners Danilo

Tano, Alfredo Tano, Eulogio Tremocha, Romualdo Tano, Baldomero Tano, Andres Lemihan and Angelde Mesa for violation of Ordinance No. 2 of the Sangguniang Panlalawigan of Palawan. Acting on said plea, we issued on 11 November 1993 a temporary restraining order directing Judge Angel Miclat of said court to cease and desist from proceeding with the arraignment and pre-trial of Criminal Case No.11223.

On 12 July 1994, we excused the Office of the Solicitor General from filing a comment, consideringthat as claimed by said office in its Manifestation of 28 June 1994, respondents were alreadyrepresented by counsel.

The rest of the respondents did not file any comment on the petition.

In the resolution of 15 September 1994, we resolved to consider the comment on the petition as theAnswer, gave due course to the petition and required the parties to submit their respective memoranda.[2]

On 22 April 1997 we ordered impleaded as party respondents the Department of Agriculture and theBureau of Fisheries and Aquatic Resources and required the Office of the Solicitor General to commenton their behalf. But in light of the latter’s motion of 9 July 1997 for an extension of time to file thecomment which would only result in further delay, we dispensed with said comment.

After due deliberation on the pleadings filed, we resolved to dismiss this petition for want of merit, on22 July 1997, and assigned it to the ponente for the writing of the opinion of the Court.





I

There are actually two sets of petitioners in this case. The first is composed of Alfredo Tano,Baldomero Tano, Danilo Tano, Romualdo Tano, Teocenes Midello, Angel de Mesa, Eulogio Tremocha,Felipe Ongonion, Jr., Andres Linijan, and Felimon de Mesa, who were criminally charged withviolating Sangguniang Panlalawigan Resolution No. 33 and Ordinance No. 2, Series of 1993, of theProvince of Palawan, in Criminal Case No. 93-05-C of the 1st Municipal Circuit Trial Court (MCTC) of

Palawan;[3] and Robert Lim and Virginia Lim who were charged with violating City Ordinance No. 15-92 of Puerto Princesa City and Ordinance No. 2, Series of 1993, of the Province of Palawan before theOffice of the City Prosecutor of Puerto Princesa.[4] All of them, with the exception of TeocenesMidello, Felipe Ongonion, Jr., Felimon de Mesa, Robert Lim and Virginia Lim, are likewise theaccused in Criminal Case No. 11223 for the violation of Ordinance No. 2 of the Sangguniang Panlalawigan of Palawan, pending before Branch 50 of the Regional Trial Court of Palawan.[5]

The second set of petitioners is composed of the rest of the petitioners numbering seventy-seven (77),all of whom, except the Airline Shippers Association of Palawan -- an alleged private association of several marine merchants -- are natural persons who claim to be fishermen.

The primary interest of the first set of petitioners is, of course, to prevent the prosecution, trial and

determination of the criminal cases until the constitutionality or legality of the Ordinances theyallegedly violated shall have been resolved. The second set of petitioners merely claim that they beingfishermen or marine merchants, they would be adversely affected by the ordinances.

As to the first set of petitioners, this special civil for certiorari must fail on the ground of prematurityamounting to a lack of cause of action. There is no showing that the said petitioners, as the accused inthe criminal cases, have filed motions to quash the informations therein and that the same were denied.The ground available for such motions is that the facts charged therein do not constitute an offense because the ordinances in question are unconstitutional.[6] It cannot then be said that the lower courtsacted without or in excess of jurisdiction or with grave abuse of discretion to justify recourse to theextraordinary remedy of certiorari or prohibition. It must further be stressed that even if the petitionersdid file motions to quash, the denial thereof would not forthwith give rise to a cause of action under

Rule 65 of the Rules of Court. The general rule is that where a motion to quash is denied, the remedytherefrom is not certiorari, but for the party aggrieved thereby to go to trial without prejudice toreiterating special defenses involved in said motion, and if, after trial on the merits of adverse decisionis rendered, to appeal therefrom in the manner authorized by law.[7] And , even where in an exceptionalcircumstance 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,unless such motion may be dispensed with because of existing exceptional circumstances.[8] Finally,even if a motion for reconsideration has been filed and denied, the remedy under Rule 65 is stillunavailable absent any showing of the grounds provided for in Section 1 thereof.[9] For obviousreasons, the petition at bar does not, and could not have , alleged any of such grounds.

As to the second set of petitioners, the instant petition is obviously one for DECLARATORY RELIEF,i.e., for a declaration that the Ordinances in question are a “nullity ... for being unconstitutional.” [10] Assuch, their petition must likewise fail, as this Court is not possessed of original jurisdiction over petitions for declaratory relief even if only questions of law are involved,[11] it being settled that theCourt merely exercises appellate jurisdiction over such petitions.[12]

II

Even granting arguendo that the first set of petitioners have a cause of action ripe for the extraordinarywrit of certiorari, there is here a clear disregard of the hierarchy of courts, and no special and importantreason or exceptional or compelling circumstance has been adduced why direct recourse to us should
























be allowed. While we have concurrent jurisdiction with Regional Trial courts and with the Court of Appeals to issue writs of certiorari, prohibition, mandamus, quo warranto, habeas corpus andinjunction, such concurrence gives petitioners no unrestricted freedom of choice of court forum, so weheld in People v. Cuaresma:[13]

This concurrence of jurisdiction is not… to be taken as according to parties seeking any of the writs anabsolute unrestrained freedom of choice of the court to which application therefor will be directed.

There is after all hierarchy of courts. That hierarchy is determinative of the venue of appeals, andshould also serve as a general determinant of the appropriate forum for petitions for the extraordinarywrits. A becoming regard for that judicial hierarchy most certainly indicates that petitions for theissuance of extraordinary writs against first level (“inferior”) courts should be filed with the RegionalTrial Court, and those against the latter, with the Court of Appeals. A direct invocation of the SupremeCourt’s original jurisdiction to issue these writs should be allowed only when there are special andimportant reasons therefor, clearly and specifically set out in the petition. This is established policy. Itis a policy necessary to prevent inordinate demands upon the Court’s time and attention which are better devoted to those matters within its exclusive jurisdiction, and to prevent further over-crowding of the Court’s docket….

The Court feels the need to reaffirm that policy at this time, and to enjoin strict adherence thereto in thelight of what it perceives to be a growing tendency on the part of litigants and lawyers to have their applications for the so-called extraordinary writs, and sometimes even their appeals, passed upon andadjudicated directly and immediately by the highest tribunal of the land….

In Santiago v. Vasquez,[14] this Court forcefully expressed that the propensity of litigants and lawyers todisregard the hierarchy of courts must be put to a halt, not only because of the imposition upon the precious time of this Court, but also because of the inevitable and resultant delay, intended or otherwise, in the adjudication of the case which often has to be remanded or referred to the lower court,the proper forum under the rules of procedure, or as better equipped to resolve the issues since thisCourt is not a trier of facts. We reiterated “the judicial policy that this Court will not entertain directresort to it unless the redress desired cannot be obtained in the appropriate courts or where exceptional

and compelling circumstances justify availment of a remedy within and calling for the exercise of [its] primary jurisdiction.”

III

Notwithstanding the foregoing procedural obstacles against the first set of petitioners, we opt to resolvethis case on its merits considering that the lifetime of the challenged Ordinances is about to end.Ordinance No. 15-92 of the City of Puerto Princesa is effective only up to 1 January 1998, whileOrdinance No. 2 of the Province of Palawan, enacted on 19 February 1993, is effective for only five (5)years. Besides, these Ordinances were undoubtedly enacted in the exercise of powers under the newLGC relative to the protection and preservation of the environment and are thus novel and of paramount importance. No further delay then may be allowed in the resolution of the issues raised.

It is of course settled that laws (including ordinances enacted by local government units) enjoy the presumption of constitutionality.[15] To overthrow this presumption, there must be a clear andunequivocal breach of the Constitution, not merely a doubtful or argumentative contradiction. In short,the conflict with the Constitution must be shown beyond reasonable doubt. [16] Where doubt exists, evenif well founded, there can be no finding of unconstitutionality. To doubt is to sustain.[17]

After a scrunity of the challenged Ordinances and the provisions of the Constitution petitioners claimto have been violated, we find petitioners’ contentions baseless and so hold that the former do notsuffer from any infirmity, both under the Constitution and applicable laws.
















areas, within a definite zone of the municipal waters, as determined by it: Provided , however , That dulyregistered organizations and cooperatives of marginal fishermen shall have preferential right to suchfishery privileges ....

In a Joint Administrative Order No. 3, dated 25 April 1996, the Secretary of the Department of Agriculture and the Secretary of the Department of Interior and Local Government prescribed theguidelines on the preferential treatment of small fisherfolk relative to the fishery right mentioned in

Section 149. This case, however, does not involve such fishery right.Anent Section 7 of Article XIII, it speaks not only of the use of communal marine and fishingresources, but of their protection, development, and conservation. As hereafter shown, the ordinancesin question are meant precisely to protect and conserve our marine resources to the end that their enjoyment by the people may be guaranteed not only for the present generation, but also for thegenerations to come.

The so-called “preferential right” of subsistence or marginal fishermen to the use of marine resources isnot at all absolute. In accordance with the Regalian Doctrine, marine resources belong to the State,and, pursuant to the first paragraph of Section 2, Article XII of the Constitution, their “exploration,development and utilization ... shall be under the full control and supervision of the State.” Moreover,

their mandated protection, development, and conservation as necessarily recognized by the framers of the Constitution, imply certain restrictions on whatever right of enjoyment there may be in favor of anyone. Thus, as to the curtailment of the preferential treatment of marginal fisherman, the followingexchange between Commissioner Francisco Rodrigo and Commissioner Jose F.S. Bengzon, Jr., took place at the plenary session of the Constitutional Commission:

MR. RODRIGO:

Let us discuss the implementation of this because I would not raise the hopes of our people,and afterwards fail in the implementation. How will this be implemented? Will there be alicensing or giving of permits so that government officials will know that one is really amarginal fisherman? Or if policeman say that a person is not a marginal fisherman, he can

show his permit, to prove that indeed he is one.MR. BENGZON:

Certainly, there will be some mode of licensing insofar as this is concerned and this particular question could be tackled when we discuss the Article on Local Governments -- whether wewill leave to the local governments or to Congress on how these things will be implemented.But certainly, I think our Congressmen and our local officials will not be bereft of ideas onhow to implement this mandate.

x x x

MR. RODRIGO:

So, once one is licensed as a marginal fisherman, he can go anywhere in the Philippines andfish in any fishing grounds.

MR. BENGZON:

Subject to whatever rules and regulations and local laws that may be passed, may be existingor will be passed.[21] (underscoring supplied for emphasis).

What must likewise be borne in mind is the state policy enshrined in the Constitution regarding theduty of the State to protect and advance the right of the people to a balanced and healthful ecology inaccord with the rhythm and harmony of nature.[22] On this score, in Oposa v. Factoran,[23] this Court









declared:

While the right to balanced and healthful ecology is to be found under the Declaration of Principles theState Policies and not under the Bill of Rights, it does not follow that it is less important than any of thecivil and political rights enumerated in the latter. Such a right belongs to a different category of rightsaltogether for it concerns nothing less than self-preservation and self-perpetuation - aptly and fittinglystressed by the petitioners - the advancement of which may even be said to predate all governments and

constitutions. As a matter of fact, these basic rights need not even be written in the Constitution for theyare assumed to exist from the inception of humankind. If they are now explicitly mentioned in thefundamental charter, it is because of the well-founded fear of its framers that unless the rights to a balanced and healthful ecology and to health are mandated as state policies by the Constitution itself,thereby highlighting their continuing importance and imposing upon the state a solemn obligation to preserve the first and protect and advance the second , the day would not be too far when all else would be lost not only for the present generation, but also for those to come - generations which stand toinherit nothing but parched earth incapable of sustaining life.

The right to a balanced and healthful ecology carries with it a correlative duty to refrain from impairingthe environment ...

The LGC provisions invoked by private respondents merely seek to give flesh and blood to the right of the people to a balanced and healthful ecology. In fact, the General Welfare Clause, expressly mentionsthis right:

SEC. 16. General Welfare.-- Every local government unit shall exercise the powers expressly granted,those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for itsefficient and effective governance, and those which are essential to the promotion of the generalwelfare. Within their respective territorial jurisdictions, local government units shall ensure andsupport, among other things, the preservation and enrichment of culture, promote health and safety,enhance the right of the people to a balanced ecology, encourage and support the development of appropriate and self-reliant scientific and technological capabilities, improve public morals, enhanceeconomic prosperity and social justice, promote full employment among their residents, maintain peace

and order, and preserve the comfort and convenience of their inhabitants. (underscoring supplied).Moreover, Section 5(c) of the LGC explicitly mandates that the general welfare provisions of the LGC“shall be liberally interpreted to give more powers to the local government units in acceleratingeconomic development and upgrading the quality of life for the people of the community.”

The LGC vests municipalities with the power to grant fishery privileges in municipal waters and toimpose rentals, fees or charges therefor; to penalize, by appropriate ordinances, the use of explosives,noxious or poisonous substances, electricity, muro-ami, and other deleterious methods of fishing; andto prosecute any violation of the provisions of applicable fishery laws.[24] Further, the sangguniang

bayan, the sangguniang panlungsod and the sangguniang panlalawigan are directed to enactordinances for the general welfare of the municipality and its inhabitants, which shall include, inter

alia, ordinances that “[p]rotect the environment and impose appropriate penalties for acts whichendanger the environment such as dynamite fishing and other forms of destructive fishing ... and suchother activities which result in pollution, acceleration of eutrophication of rivers and lakes or of ecological imbalance.”[25]

Finally, the centerpiece of LGC is the system of decentralization[26] as expressly mandated by theConstitution.[27] Indispensable thereto is devolution and the LGC expressly provides that “[a]ny provision on a power of a local government unit shall be liberally interpreted in its favor, and in case of doubt, any question thereon shall be resolved in favor of devolution of powers and of the lower localgovernment unit. Any fair and reasonable doubt as to the existence of the power shall be interpreted in











favor of the local government unit concerned,”[28] Devolution refers to the act by which the NationalGovernment confers power and authority upon the various local government units to perform specificfunctions and responsibilities.[29]

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.[30] This necessarily includesenactment of ordinances to effectively carry out such fishery laws within the municipal waters.

The term “municipal waters,” in turn, include not only streams, lakes, and tidal waters within themunicipality, not being the subject of private ownership and not comprised within the national parks, public forest, timber lands, forest reserves, or fishery reserves, but also marine waters included betweentwo lines drawn perpendicularly to the general coastline from points where the boundary lines of themunicipality or city touch the sea at low tide and a third line parallel with the general coastline andfifteen kilometers from it.[31] Under P.D. No. 704, the marine waters included in municipal waters islimited to three nautical miles from the general coastline using the above perpendicular lines and a third parallel line.

These “fishery laws” which local government units may enforce under Section 17(b), (2), (i) inmunicipal waters include: (1) P.D. No. 704; (2) P.D. No. 1015 which, inter alia, authorizes the

establishment of a “closed season” in any Philippine water if necessary for conservation or ecological purposes; (3) P.D. No. 1219 which provides for the exploration, exploitation, utilization, andconservation of coral resources; (4) R.A. No. 5474, as amended by B.P. Blg. 58, which makes itunlawful for any person, association, or corporation to catch or cause to be caught, sell, offer to sell, purchase, or have in possession any of the fish specie called gobiidae or “ipon” during closed season;and (5) R.A. No. 6451 which prohibits and punishes electrofishing, as well as various issuances of theBFAR.

To those specifically devolved insofar as the control and regulation of fishing in municipal waters andthe protection of its marine environment are concerned, must be added the following:

1. Issuance of permits to construct fish 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.

These functions are covered in the Memorandum of Agreement of 5 April 1994 between the

Department of Agriculture and the Department of Interior and Local Government.In light then of the principles of decentralization and devolution enshrined in the LGC and the powersgranted to local government units under Section 16 (the General Welfare Clause), and under Sections149, 447 (a) (1) (vi), 458 (a) (1) (vi) and 468 (a) (1) (vi), which unquestionably involve the exercise of police power, the validity of the questioned Ordinances cannot be doubted.

Parenthetically, we wish to add that these Ordinances find full support under R.A. No. 7611, otherwiseknown as the Strategic Environmental Plan (SEP) for Palawan Act, approved on 19 July 1992. Thisstatute adopts a “comprehensive framework for the sustainable development of Palawan compatiblewith 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 concernedin the formulation and implementation of plans, programs and projects affecting said province.”[32]

At this time then, it would be appropriate to determine the relation between the assailed Ordinances andthe aforesaid powers of the Sangguniang Panlungsod of the City of Puerto Princesa and theSangguniang Panlalawigan of the Province of Palawan to protect the environment. To begin, weascertain the purpose of the Ordinances as set forth in the statement of purposes or declaration of

policies quoted earlier.It is clear to the Court that both Ordinances 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 corals of the marine waters of the City of Puerto Princesa and the Province of Palawan from further destruction due to illegal fishing activities.

The accomplishment of the first objective is well within the devolved power to enforce fishery laws inmunicipal waters, such as P.D. No. 1015, which allows the establishment of “closed seasons.” Thedevolution of such power has been expressly confirmed in the Memorandum of Agreement of 5 April1994 between the Department of Agriculture and the Department of Interior and Local Government.

The realization of the second objective 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.[33]

The destruction of the coral reefs results in serious, if not irreparable, ecological imbalance, for coralreefs are among the nature’s life-support systems.[34] They collect, retain, and recycle nutrients for adjacent nearshore areas such as mangroves, seagrass beds, and reef flats; provide food for marine plants and animals; and serve as a protective shelter for aquatic organisms.[35] It is said that“[e]cologically, “the reefs are to the oceans what forests are to continents: they are shelter and breedinggrounds for fish and plant species that will disappear without them.”[36]

The prohibition against catching live fish stems, in part, from the modern phenomenon of live-fishtrade which entails the catching of so-called exotic tropical species of fish not only for aquarium use in

the West, but also for “the market for live banquet fish [which] is virtually insatiable in ever moreaffluent Asia.[37] These exotic species are coral-dwellers, and fishermen catch them by “diving inshallow water with corraline habitats and squirting sodium cyanide poison at passing fish directly or onto coral crevices; once affected the fish are immobilized [merely stunned] and then scooped byhand.”[38] The diver then surfaces and dumps his catch into a submerged net attached to the skiff .Twenty minutes later, the fish can swim normally. Back on shore, they are placed in holding pens, andwithin a few weeks, they expel the cyanide from their system and are ready to be hauled. Then they are placed in saltwater tanks or packaged in plastic bags filled with seawater for shipment by air freight tomajor markets for live food fish.[39] While the fish are meant to survive, the opposite holds true for their former home as “[a]fter the fisherman squirts the cyanide, the first thing to perish is the reef algae, onwhich fish feed. Days later, the living coral starts to expire. Soon the reef loses its function as habitat

for the fish, which eat both the algae and invertebrates that cling to the coral. The reef becomes anunderwater graveyard, its skeletal remains brittle, bleached of all color and vulnerable to erosion fromthe pounding of the waves.”[40] It has been found that cyanide fishing kills most hard and soft coralswithin three months of repeated application.[41]

The nexus then between the activities barred by Ordinance No. 15-92 of the City of Puerto Princesaand the prohibited acts provided in Ordinance No. 2, Series of 1993 of the Province of Palawan, onone hand, and the use of sodium cyanide, on the other, is painfully obvious. In sum, the public purposeand reasonableness of the Ordinances may not then be controverted.

























As to Office Order No. 23, Series of 1993, issued by Acting City Mayor Amado L. Lucero of the Cityof Puerto Princesa, we find nothing therein violative of any constitutional or statutory provision. TheOrder refers to the implementation of the challenged ordinance and is not the Mayor’s Permit.

The dissenting opinion of Mr. Justice Josue N. Bellosillo relies upon the lack of authority on the part of the Sangguniang Panlungsod of Puerto Princesa to enact Ordinance No. 15, Series of 1992, on thetheory that the subject thereof is within the jurisdiction and responsibility of the Bureau of Fisheries

and Aquatic Resources (BFAR) under P.D. No. 704, otherwise known as the Fisheries Decree of 1975;and that, in any event, the Ordinance is unenforceable for lack of approval by the Secretary of theDepartment of Natural Resources (DNR), likewise in accordance with P.D. No. 704.

The majority is unable to accommodate this view. The jurisdiction and responsibility of the BFAR under P. D. no. 704, over the management, conservation, development, protection, utilization anddisposition of all fishery and aquatic resources of the country is not all-encompassing. First, Section 4thereof excludes from such jurisdiction and responsibility municipal waters, which shall be under themunicipal or city government concerned, except insofar as fishpens and seaweed culture in municipalin municipal centers are concerned. This section provides, however, that all municipal or cityordinances and resolutions affecting fishing and fisheries and any disposition thereunder shall besubmitted to the Secretary of the Department of Natural Resources for appropriate action and shallhave full force and effect only upon his approval.[42]

Second, it must at once be pointed out that the BFAR is no longer under the Department of NaturalResources (now Department of Environment and Natural Resources). Executive Order No. 967 of 30June 1984 transferred the BFAR from the control and supervision of the Minister (formerly Secretary)of Natural Resources to the Ministry of Agriculture and Food (MAF) and converted it into a mere staff agency thereof, integrating its functions with the regional offices of the MAF.

In Executive Order No. 116 of 30 January 1987, which reorganized the MAF, the BFAR was retainedas an attached agency of the MAF. And under the Administrative Code of 1987,[43] the BFAR is placedunder the Title concerning the Department of Agriculture.[44]

Therefore, it is incorrect to say that the challenged Ordinance of the City of Puerto Princesa is invalidor unenforceable because it was not approved by the Secretary of the DENR. If at all, the approval thatshould be sought would be that of the Secretary of the Department of Agriculture (not DENR) of municipal ordinances affecting fishing and fisheries in municipal waters has been dispensed with inview of the following reasons:

(1) Section 534 (Repealing Clause) of the LGC expressly repeals or amends Section 16 and 29of P.D. No. 704[45] insofar that they are inconsistent with the provisions of the LGC.

(2) As discussed earlier, under the general welfare clause of the LGC, local government unitshave the power, inter alia, to enact ordinances to enhance the right of the people to a balanced ecology.It likewise specifically vests municipalities with the power to grant fishery privileges in municipalwaters, and impose rentals, fees or charges therefor; to penalize, by appropriate ordinances, the use of explosives, noxious or poisonous substances, electricity, muro-ami, and other deleterious methods of fishing; and to prosecute other methods of fishing; and to prosecute any violation of the provisions of applicable fishing laws.[46] Finally, it imposes upon the sangguniang bayan, the sangguniang

panlungsod, and the sangguniang panlalawigan the duty to enact ordinances to “[p]rotect theenvironment and impose appropriate penalties for acts which endanger the environment such asdynamite fishing and other forms of destructive fishing… and such other activities which result in pollution, acceleration of eutrophication of rivers and lakes or of ecological imbalance.”[47]

In closing, we commend the Sangguniang Panlungsod of the City of Puerto Princesa and Sangguniang















Panlalawigan of the Province of Palawan for exercising the requisite political will to enact urgentlyneeded legislation to protect and enhance the marine environment, thereby sharing in the herculean task of arresting the tide of ecological destruction. We hope that other local government units shall now beroused from their lethargy and adopt a more vigilant stand in the battle against the decimation of our legacy to future generations. At this time, the repercussions of any further delay in their response may prove disastrous, if not, irreversible.

WHEREFORE, the instant petition is DISMISSED for lack of merit and the temporary restrainingorder issued on 11 November 1993 is LIFTED.

No pronouncement as to costs.

SO ORDERED.

Narvasa, C.J., Padilla, Vitug, Panganiban, and Torres, Jr., JJ., concur.

Romero, Melo, Puno, and Francisco, JJ., joined the ponencias of Justices Davide and Mendoza.

Bellosillo, J., see dissenting opinion.

Kapunan and Hermosisima, Jr., JJ., join Justice Bellosillo in his dissenting opinion.

Mendoza, see concurring opinion.Regalado, J., on official leave.

.

[42] Said section reads:

SEC. 4. Jurisdiction of the Bureau.--- The Bureau shall have jurisdiction and responsibility in themanagement, conservation, development, protection, utilization and disposition of all fishery andaquatic resources of the country except municipal waters which shall be under the municipal or citygovernment concerned: Provided, That fishpens and seaweed culture in municipal centers shall beunder 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 theSecretary for appropriate action and shall have full force and effect only upon his approval. The Bureaushall also have authority to regulate and supervise the production, capture and gathering of fish andfishery/aquatic products.The Bureau shall prepare and implement, upon approval of the Fishery Industry Development Council,a Fishery Industry Development Program.

[43] Executive Order No. 292.

[44] Section 20, Chapter 4, Title IV, Book IV.

[45] These sections read as follows:

SEC. 16. License, lease, and permit.--- No person shall exploit, occupy, produce, culture, capture or gather fish, or fry or fingerling of any species of fish or fishery/aquatic products, or engage in anyfishery activity in Philippine or municipal waters without a license, lease or permit: Provided, Thatwhen due to destruction wrought upon fishponds, fishpens or fish nurseries, by typhoon, floods andother fortuitous events, or due to speculation, monopolistic and other pernicious practices which tend tocreate an artificial shortage of fry and/or fingerling, the supply of fish and fishery/aquatic products canreasonably be expected to fall below the usual demand therefor and the price thereof, to increase, theSecretary, upon recommendation of the Director, is hereby authorized to fix a fair and reasonable pricefor fry and fingerling of any species of fish, and in so doing and when necessary , fix different pricelevels for various areas or regions taking into account such variable factors as availability, accessibility

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to transportation facilities, packing and crating, and to regulate the movement, shipment andtransporting of such fry and fingerling: Provided, Further, That the price so fixed shall guarantee thegatherers of fry a just and equitable return for their labor: Provided, Finally, That any administrativeorder issued by the Secretary to implement the foregoing shall take effect immediately, the provisionsof Section 7 hereof to the contrary notwithstanding.

xxx

C. MUNICIPAL FISHERIESSEC. 29. Grant of fishery priviliges.--- A municipal or city council, conformably with an ordinanceduly approved by the Secretary pursuant to Section 4 hereof may:a. grant to the highest qualified bidder the exclusive privilege of constructing and operating fishcorrals, oyster culture beds, or of gathering of “bangus” fry, or the fry of other species, in municipalwaters for a period not exceeding five (5) years: Provided, That in the zoning and classification of municipal waters for purposes of awarding, through public bidding , areas for the construction or operation of fish corrals, oyster culture bed, or the gathering of fry, the municipal or city council shallset aside not more than one-fifth (1/5) of the area, earmarked for the gathering of fry, as may bedesignated by the Bureau, as government “bangus” fry reservation: Provided, Further , That no fishcorral shall be constructed within two hundred (200) meters of another fish corral in marine fisheries,

or one hundred (100) meters in freshwater fisheries, unless they belong to the same licensee, but in nocase shall the distance be less than sixty (60) meters, except in waters less than two (2) meters deep atlow tide, or unless previously approved by the Secretary; b. authorize the issuance to qualified persons of license for the operation of fishing boats three (3)gross tons or less, or for the privilege of fishing in municipal waters with nets, traps or other fishinggear: Provided , That it shall be beyond the power of the municipal or city council to impose a licensefor the privilege of gathering marine mollusca or the shells thereof, for pearling boats and pearl divers,or for prospecting, collecting or gathering spongers or other aquatic products, or for the culture of fishery/aquatic products: Provided, Further, That a licensee under this paragraph shall not operatewithin two hundred (200) meters of any fish corral licensed by the municipality except when thelicensee is the owner or operator of the fish corral but in no case within sixty (60) meters of said corral.

The municipal or city council shall furnish the Bureau, for statistical purposes, on forms which shall befurnished by the Bureau, such information and data on fishery matters as are reflected in such forms.

[46] Section 149.

[47] Section 447 [a] [1] [vi]; Section 458 [a] [1] [vi]; Section 468 [a] [1] [vi].

FIRST DIVISION

[G.R. No. 148622. September 12, 2002]

REPUBLIC OF THE PHILIPPINES, represented by HON. HEHERSON T. ALVAREZ, in his

capacity as Secretary of the DEPARTMENT OF ENVIRONMENT AND NATURAL

RESOURCES (DENR), CLARENCE L. BAGUILAT, in his capacity as the Regional Executive

Director of DENR-Region XI and ENGR. BIENVENIDO L. LIPAYON, in his capacity as theRegional Director of the DENR-ENVIRONMENTAL MANAGEMENT BUREAU (DENR-EMB),

Region XI, petitioners, vs. THE CITY OF DAVAO, represented by BENJAMIN C. DE GUZMAN,

City Mayor, respondent .

D E C I S I O N

YNARES-SANTIAGO, J .:

Before us is a petition for review[1] on certiorari assailing the decision[2] dated May 28, 2001 of theRegional Trial Court of Davao City, Branch 33, which granted the writ of mandamus and injunction in



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favor of respondent, the City of Davao, and against petitioner, the Republic, represented by theDepartment of Environment and Natural Resources (DENR). The trial court also directed petitioner toissue a Certificate of Non-Coverage in favor of respondent.

The antecedent facts of the case are as follows:

On August 11, 2000, respondent filed an application for a Certificate of Non-Coverage (CNC) for its proposed project, the Davao City Artica Sports Dome, with the Environmental Management Bureau(EMB), Region XI. Attached to the application were the required documents for its issuance, namely,a) detailed location map of the project site; b) brief project description; and c) a certification from theCity Planning and Development Office that the project is not located in an environmentally critical area(ECA). The EMB Region XI denied the application after finding that the proposed project was withinan environmentally critical area and ruled that, pursuant to Section 2, Presidential Decree No. 1586,otherwise known as the Environmental Impact Statement System, in relation to Section 4 of Presidential Decree No, 1151, also known as the Philippine Environment Policy, the City of Davaomust undergo the environmental impact assessment (EIA) process to secure an EnvironmentalCompliance Certificate (ECC), before it can proceed with the construction of its project.

Believing that it was entitled to a Certificate of Non-Coverage, respondent filed a petition for

mandamus and injunction with the Regional Trial Court of Davao, docketed as Civil Case No. 28,133-2000. It alleged that its proposed project was neither an environmentally critical project nor within anenvironmentally critical area; thus it was outside the scope of the EIS system. Hence, it was theministerial duty of the DENR, through the EMB-Region XI, to issue a CNC in favor of respondentupon submission of the required documents.

The Regional Trial Court rendered judgment in favor of respondent, the dispositive portion of whichreads as follows:

WHEREFORE, finding the petition to be meritorious, judgment granting the writ of mandamus andinjunction is hereby rendered in favor of the petitioner City of Davao and against respondentsDepartment of Environment and Natural Resources and the other respondents by:

1) directing the respondents to issue in favor of the petitioner City of Davao a Certificate of Non-Coverage, pursuant to Presidential Decree No. 1586 and related laws, in connection with theconstruction by the City of Davao of the Artica Sports Dome;

2) making the preliminary injunction issued on December 12, 2000 permanent.

Costs de oficio.

SO ORDERED.[3]

The trial court ratiocinated that there is nothing in PD 1586, in relation to PD 1151 and Letter of Instruction No. 1179 (prescribing guidelines for compliance with the EIA system), which requires localgovernment units (LGUs) to comply with the EIS law. Only agencies and instrumentalities of the

national government, including government owned or controlled corporations, as well as privatecorporations, firms and entities are mandated to go through the EIA process for their proposed projectswhich have significant effect on the quality of the environment. A local government unit, not being anagency or instrumentality of the National Government, is deemed excluded under the principle of expressio unius est exclusio alterius.

The trial court also declared, based on the certifications of the DENR-Community Environment and Natural Resources Office (CENRO)-West, and the data gathered from the Philippine Institute of Volcanology and Seismology (PHIVOLCS), that the site for the Artica Sports Dome was not within anenvironmentally critical area. Neither was the project an environmentally critical one. It therefore





becomes mandatory for the DENR, through the EMB Region XI, to approve respondent’s applicationfor CNC after it has satisfied all the requirements for its issuance. Accordingly, petitioner can becompelled by a writ of mandamus to issue the CNC, if it refuses to do so.

Petitioner filed a motion for reconsideration, however, the same was denied. Hence, the instant petitionfor review.

With the supervening change of administration, respondent, in lieu of a comment, filed a manifestationexpressing its agreement with petitioner that, indeed, it needs to secure an ECC for its proposed project. It thus rendered the instant petition moot and academic. However, for the guidance of theimplementors of the EIS law and pursuant to our symbolic function to educate the bench and bar,[4] weare inclined to address the issue raised in this petition.

Section 15 of Republic Act 7160,[5] otherwise known as the Local Government Code, defines a localgovernment unit as a body politic and corporate endowed with powers to be exercised by it inconformity with law. As such, it performs dual functions, governmental and proprietary. Governmentalfunctions are those that concern the health, safety and the advancement of the public good or welfareas affecting the public generally.[6] Proprietary functions are those that seek to obtain special corporate benefits or earn pecuniary profit and intended for private advantage and benefit.[7] When exercising

governmental powers and performing governmental duties, an LGU is an agency of the nationalgovernment. [8] When engaged in corporate activities, it acts as an agent of the community in theadministration of local affairs. ( hence they need to undergo EIA..)

Found in Section 16 of the Local Government Code is the duty of the LGUs to promote the people’sright to a balanced ecology. Pursuant to this, an LGU, like the City of Davao, can not claim exemptionfrom the coverage of PD 1586 ( . As a body politic endowed with governmental functions, an LGU hasthe duty to ensure the quality of the environment, which is the very same objective of PD 1586.

Further, it is a rule of statutory construction that every part of a statute must be interpreted withreference to the context, i.e., that every part must be considered with other parts, and kept subservientto the general intent of the enactment. [11] The trial court, in declaring local government units as exempt

from the coverage of the EIS law, failed to relate Section 2 of PD 1586[12]

to the following provisionsof the same law:

WHEREAS, the pursuit of a comprehensive and integrated environmental protection programnecessitates the establishment and institutionalization of a system whereby the exigencies of socio-economic undertakings can be reconciled with the requirements of environmental quality; x x x.

Section 1. Policy. – It is hereby declared the policy of the State to attain and maintain a rational andorderly balance between socio-economic growth and environmental protection.

x x x x x x x x x

Section 4. – Presidential Proclamation of Environmentally Critical Areas and Projects. – The Presidentof the Philippines may, on his own initiative or upon recommendation of the National Environmental

Protection Council, by proclamation declare certain projects, undertakings or areas in the country asenvironmentally critical. No person, partnership or corporation shall undertake or operate any suchdeclared environmentally critical project or area without first securing an Environmental ComplianceCertificate issued by the President or his duly authorized representative. For the proper management of said critical project or area, the President may by his proclamation reorganize such government offices,agencies, institutions, corporations or instrumentalities including the realignment of government personnel, and their specific functions and responsibilities.

Section 4 of PD 1586 clearly states that “no person, partnership or corporation shall undertake or





















operate any such declared environmentally critical project or area without first securing anEnvironmental Compliance Certificate issued by the President or his duly authorizedrepresentative.”[13] The Civil Code defines a person as either natural or juridical. The state and its political subdivisions, i.e., the local government units[14] are juridical persons.[15] Undoubtedlytherefore, local government units are not excluded from the coverage of PD 1586.

Lastly, very clear in Section 1 of PD 1586 that said law intends to implement the policy of the state to

achieve a balance between socio-economic development and environmental protection, which are thetwin goals of sustainable development. The above-quoted first paragraph of the Whereas clause stressesthat this can only be possible if we adopt a comprehensive and integrated environmental protection program where all the sectors of the community are involved, i.e., the government and the privatesectors. The local government units, as part of the machinery of the government, cannot therefore bedeemed as outside the scope of the EIS system. [16]

The foregoing arguments, however, presuppose that a project, for which an Environmental ComplianceCertificate is necessary, is environmentally critical or within an environmentally critical area. In thecase at bar, respondent has sufficiently shown that the Artica Sports Dome will not have a significantnegative environmental impact because it is not an environmentally critical project and it is not locatedin an environmentally critical area. In support of this contention, respondent submitted the following:

1. Certification from the City Planning and Development Office that the project is not located in anenvironmentally critical area;

2. Certification from the Community Environment and Natural Resources Office (CENRO-West)that the project area is within the 18-30% slope, is outside the scope of the NIPAS (R.A. 7586), and notwithin a declared watershed area; and

3. Certification from PHILVOCS that the project site is thirty-seven (37) kilometers southeast of thesouthernmost extension of the Davao River Fault and forty-five (45) kilometers west of the EasternMindanao Fault; and is outside the required minimum buffer zone of five (5) meters from a fault zone.

The trial court, after a consideration of the evidence, found that the Artica Sports Dome is not within an

environmentally critical area. Neither is it an environmentally critical project. It is axiomatic thatfactual findings of the trial court, when fully supported by the evidence on record, are binding upon thisCourt and will not be disturbed on appeal. This Court is not a trier of facts.

There are exceptional instances when this Court may disregard factual findings of the trial court,namely: a) when the conclusion is a finding grounded entirely on speculations, surmises, or conjectures; b) when the inference made is manifestly mistaken, absurd, or impossible; c) where thereis a grave abuse of discretion; d) when the judgment is based on a misapprehension of facts; e) whenthe findings of fact are conflicting; f) when the Court of Appeals, in making its findings, went beyondthe issues of the case and the same are contrary to the admissions of both appellant and appellee; g)when the findings of the Court of Appeals are contrary to those of the trial court; h) when the findingsof fact are conclusions without citation of specific evidence on which they are based; i) when thefinding of fact of the Court of Appeals is premised on the supposed absence of evidence but iscontradicted by the evidence on record; and j) when the Court of Appeals manifestly overlooked certainrelevant facts not disputed by the parties and which, if properly considered, would justify a differentconclusion.[19] None of these exceptions, however, obtain in this case.

The Environmental Impact Statement System, which ensures environmental protection and regulatescertain government activities affecting the environment, was established by Presidential Decree No.1586. Section 2 thereof states:

There is hereby established an Environmental Impact Statement System founded and based on the














environmental impact statement required under Section 4 of Presidential Decree No. 1151, of allagencies and instrumentalities of the national government, including government-owned or controlledcorporations, as well as private corporations, firms and entities, for every proposed project andundertaking which significantly affect the quality of the environment.

Section 4 of PD 1151, on the other hand, provides:

Environmental Impact Statements. – Pursuant to the above enunciated policies and goals, all agenciesand instrumentalities of the national government, including government-owned or controlledcorporations, as well as private corporations, firms and entities shall prepare, file and include in everyaction, project or undertaking which significantly affects the quality of the environment a detailedstatement on–

(a) the environmental impact of the proposed action, project or undertaking

(b) any adverse environmental effect which cannot be avoided should the proposal beimplemented

(c) alternative to the proposed action

(d) a determination that the short-term uses of the resources of the environment are consistent

with the maintenance and enhancement of the long-term productivity of the same; and(e) whenever a proposal involves the use of depletable or nonrenewable resources, a finding must be made that such use and commitment are warranted.

Before an environmental impact statement is issued by a lead agency, all agencies having jurisdictionover, or special expertise on, the subject matter involved shall comment on the draft environmentalimpact statement made by the lead agency within thirty (30) days from receipt of the same.

Under Article II, Section 1, of the Rules and Regulations Implementing PD 1586, the declaration of certain projects or areas as environmentally critical, and which shall fall within the scope of theEnvironmental Impact Statement System, shall be by Presidential Proclamation, in accordance withSection 4 of PD 1586 quoted above.

Pursuant thereto, Proclamation No. 2146 was issued on December 14, 1981, proclaiming the followingareas and types of projects as environmentally critical and within the scope of the EnvironmentalImpact Statement System established under PD 1586:

A. Environmentally Critical Projects

I. Heavy Industries

a. Non-ferrous metal industries

b. Iron and steel mills

c. Petroleum and petro-chemical industries including oil and gas

d. Smelting plants

II. Resource Extractive Industries

a. Major mining and quarrying projects

b. Forestry projects

1. Logging

2. Major wood processing projects



3. Introduction of fauna (exotic-animals) in public/private forests

4. Forest occupancy

5. Extraction of mangrove products

6. Grazing

c. Fishery Projects

1. Dikes for/and fishpond development projects

III. Infrastructure Projects

a. Major dams

b. Major power plants (fossil-fueled, nuclear fueled, hydroelectric or geothermal)

c. Major reclamation projects

d. Major roads and bridges

B. Environmentally Critical Areas

1. All areas declared by law as national parks, watershed reserves, wildlife preserves andsanctuaries;

2. Areas set aside as aesthetic potential tourist spots;

3. Areas which constitute the habitat for any endangered or threatened species of indigenousPhilippine Wildlife (flora and fauna);

4. Areas of unique historic, archaeological, or scientific interests;

5. Areas which are traditionally occupied by cultural communities or tribes;

6. Areas frequently visited and/or hard-hit by natural calamities (geologic hazards, floods,typhoons, volcanic activity, etc.);

7. Areas with critical slopes;

8. Areas classified as prime agricultural lands;

9. Recharged areas of aquifers;

10. Water bodies characterized by one or any combination of the following conditions;

a. tapped for domestic purposes

b. within the controlled and/or protected areas declared by appropriate authorities

c. which support wildlife and fishery activities

11. Mangrove areas characterized by one or any combination of the following conditions:

a. with primary pristine and dense young growth;

b. adjoining mouth of major river systems;

c. near or adjacent to traditional productive fry or fishing grounds;

d. which act as natural buffers against shore erosion, strong winds and storm floods;

e. on which people are dependent for their livelihood.

12. Coral reefs, characterized by one or any combinations of the following conditions:



a. with 50% and above live coralline cover;

b. spawning and nursery grounds for fish;

c. which act as natural breakwater of coastlines.

In this connection, Section 5 of PD 1586 expressly states:

Environmentally Non-Critical Projects. — All other projects, undertakings and areas not declared bythe President as environmentally critical shall be considered as non-critical and shall not be required tosubmit an environmental impact statement. The National Environmental Protection Council, thru theMinistry of Human Settlements may however require non-critical projects and undertakings to provideadditional environmental safeguards as it may deem necessary.

The Artica Sports Dome in Langub does not come close to any of the projects or areas enumeratedabove. Neither is it analogous to any of them. It is clear, therefore, that the said project is not classifiedas environmentally critical, or within an environmentally critical area. Consequently, the DENR has nochoice but to issue the Certificate of Non-Coverage. It becomes its ministerial duty, the performance of which can be compelled by writ of mandamus, such as that issued by the trial court in the case at bar.

WHEREFORE, in view of the foregoing, the instant petition is DENIED. The decision of the

Regional Trial Court of Davao City, Branch 33, in Civil Case No. 28,133-2000, granting the writ of mandamus and directing the Department of Environment and Natural Resources to issue in favor of theCity of Davao a Certificate of Non-Coverage, pursuant to Presidential Decree No. 1586 and relatedlaws, in connection with the construction of the Artica Sports Dome, is AFFIRMED.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Vitug, and Carpio, JJ., concur.

EN BANC

[G.R. No. 145973. January 23, 2002]

ANTONIO G. PRINCIPE, petitioner , vs. FACT-FINDING & INTELLIGENCE, BUREAU (FFIB),OFFICE OF THE OMBUDSMAN, respondents.

D E C I S I O N

PARDO , J .:

The Case

The case is a petition for review on certiorari seeking to reverse the decision of the Court of Appeals[1] affirming the Ombudsman’s dismissal of petitioner from the government service for gross neglect of duty in connection with the collapse of the housing project at the Cherry Hills Subdivision, AntipoloCity, on August 3, 1999.

The Facts

The facts, as found by the Court of Appeals, are as follows:

“August 28, 1990- Philjas Corporation, whose primary purposes, among others are: to own, develop,subdivide, market and provide low-cost housing for the poor, was registered with the Securities andExchange Commission (SEC).

“February 19, 1991 - then City Mayor Daniel S. Garcia, endorsed to the Housing and Land Use

http://sc.judiciary.gov.ph/jurisprudence/2002/jan2002/145973.htm#_edn1




Regulatory Board (HLURB) the proposed CHS.

“Thereafter, or on 07 March 1991, based on the favorable recommendation of Mayor Garcia,respondent TAN, issued the Preliminary Approval and Locational Clearance (PALC) for thedevelopment of CHS.

“On July 5, 1991, then HLURB Commissioner respondent TUNGPALAN issued Development Permit No. 91-0216 for “land development only” for the entire land area of 12.1034 hectares covered by TCT No. 35083 (now TCT 208837) and with 1,003 saleable lots/units with project classification B. P. 220Model A-Socialized Housing (p. 96, Records), with several conditions for its development.

“Three (3) days thereafter or on July 8, 1991, respondent JASARENO, allowed/granted theleveling/earth-moving operations of the development project of the area subject to certain conditions.

“On November 18, 1991, then HLURB Commissioner AMADO B. DELORIA issued Certificate of Registration No. 91-11-0576 in favor of CHS, with License to Sell No. 91-11-0592 for the 1,007lots/units in the subdivision.

“Eventually, on December 10, 1991, respondent POLLISCO issued Small Scale Mining Permit(SSMP) No. IV-316 to Philjas to extract and remove 10,000 cu. meters of filling materials from the

area where the CHS is located.Second application of the Philjas for SSMP:“Thereafter, or on January 12, 1994, Philjas applied for aSmall Scale Mining Permit (SSMP) under P. D. 1899 with the Rizal Provincial Government to extractand remove 50,000 metric tons of filling materials per annum on CHS’ 2.8 hectares.

“Thus, on January 17, 1994, respondent MAGNO, informed ELIEZER I. RODRIGUEZ of Philjas thatCHS is within the EIS System and as such must secure ECC from the DENR. Philjas was accordinglyinformed of the matter such that it applied for the issuance of ECC from the DENR-Region IV, onFebruary 3, 1994.

“On March 12, 1994, an Inspection Report allegedly prepared by respondent BALICAS, attested byrespondent RUTAQUIO and approved by respondent TOLENTINO re: field evaluation to the issuance

of ECC, was submitted.“Consequently, on April 28, 1994, upon recommendation of respondent TOLENTINO, Philjasapplication for ECC was approved by respondent PRINCIPE, then Regional Executive Director, DENR under ECC-137-RI-212-94.

“A Mining Field Report for SSMP dated May 10, 1994 was submitted pursuant to the inspection report prepared by respondents CAYETANO, FELICIANO, HILADO and BURGOS, based on their inspection conducted on April 25 to 29, 1994. The report recommended, among others, that the proposed extraction of materials would pose no adverse effect to the environment.

“Records further disclosed that on August 10, 1994, respondent BALICAS monitored theimplementation of the CHS Project Development to check compliance with the terms and conditions in

the ECC. Again, on August 23, 1995, she conducted another monitoring on the project for the same purpose. In both instances, she noted that the project was still in the construction stage hence,compliance with the stipulated conditions could not be fully assessed, and therefore, a follow-upmonitoring inspection was the last one conducted by the DENR.

“On September 24, 1994, GOV. CASIMIRO I. YNARES, JR., approved the SSMP applied for byPhiljas under SSMP No. RZL-012, allowing Philjas to extract and remove 50,000 metric tons of fillingmaterials from the area for a period of two (2) years from date of its issue until September 6, 1996.”[2]

On November 15, 1999, the Ombudsman rendered a decision finding petitioner Principe





administratively liable for gross neglect of duty and imposing upon him the penalty of dismissal fromoffice. The dispositive portion of the decision reads:

“WHEREFORE, premises considered xxx

xxx

x x x the following respondents are hereby found GUILTY as charged and meted the respective

penalties provided under Section 22, Rule XIV of the Omnibus Rules, Implementing Book V of Executive Order No. 292, otherwise known as the Administrative Code of 1987, viz,:

1. xxx

5. Antonio G. Principe - Penalty of Dismissal from the Service for Gross Neglect of Duty.

xxx

SO ORDERED.”[3]

On January 4, 2000, petitioner filed with the Court of Appeals a petition for review assailing thedecision of the Ombudsman.[4]

On August 25, 2000, the Court of Appeals promulgated a decision denying the petition and affirmingthe decision of the Ombudsman.[5]

Hence, this appeal.[6]

The Issue

The issue raised is whether the Ombudsman may dismiss petitioner from the service on anadministrative charge for gross neglect of duty, initiated, investigated and decided by the Ombudsmanhimself without substantial evidence to support his finding of gross neglect of duty because the duty tomonitor and inspect the project was not vested in petitioner.

The Court's Ruling

Republic Act No. 6770, Section 15, prescribed the powers of the Ombudsman, as follows:

“Section 15. Powers, Functions and Duties. - The Office of the Ombudsman shall have the following powers, functions and duties:

“(1) Investigate and prosecute on its own or on complaint by any person, any act or omission of any public officer or employee, office or agency, when such act or omission appears to be illegal, unjust,improper or inefficient. It has primary jurisdiction over cases cognizable by the Sandiganbayan and, inthe exercise of this primary jurisdiction it may take over, at any stage, from any investigatory agency of Government, the investigation of such cases;

“(2) Direct, upon complaint or at its own instance, any officer or employee of the Government, or of any subdivision, agency or instrumentality thereof, as well as any government-owned or controlled

corporations with original charter, to perform and expedite any act or duty required by law, or to stop, prevent, and correct any abuse or impropriety in the performance of duties;

“(3) Direct the officer concerned to take appropriate action against a public officer or employee at faultor who neglects to perform an act or discharge a duty required by law, and recommend his removal,suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith; or enforce itsdisciplinary authority as provided in Section 21[7] of this Act: Provided, That the refusal by any officer without just cause to comply with an order of the Ombudsman to remove, suspend, demote, fine,censure, or prosecute an officer or employee who is at fault or who neglects to perform an act or discharge a duty required by law shall be a ground for disciplinary action against said officer;














“(4) Direct the officer concerned, in any appropriate case, and subject to such limitations as it may provide in its rules of procedure, to furnish it with copies of documents relating to contracts or transactions entered into by his office involving the disbursement or use of public funds or properties,and report any irregularity to the Commission on Audit for appropriate action;

“(5) Request any government agency for assistance and information necessary in the discharge of itsresponsibilities, and to examine, if necessary, pertinent records and documents;

“(6) Publicize matters covered by its investigation of the matters mentioned in paragraphs (1), (2), (3)and (4) hereof, when circumstances so warrant and with due prudence: Provided, further, that any publicity issued by the Ombudsman shall be balance, fair and true;

“(7) Determine the causes of inefficiency, red tape, mismanagement, fraud, and corruption in theGovernment, and make recommendations for their elimination and the observance of high standards of ethics and efficiency;

“(8) Administer oaths, issue subpoena and subpoena duces tecum, and take testimony in anyinvestigation or inquiry, including the power to examine and have access to bank accounts and records;

“(9) Punish for contempt in accordance with the Rules of Court and under the same procedure and with

the same penalties provided therein;“(10) Delegate to the Deputies, or its investigators or representatives such authority or duty as shallensure the effective exercise or performance of the powers, functions, and duties herein or hereinafter provided;

“(11) Investigate and initiate the proper action for the recovery of ill-gotten and/or unexplained wealthamassed after February 25, 1986 and the prosecution of the parties involved therein.”[8]

The Ombudsman without taking into consideration the lawfully mandated duties and functions attachedto petitioner’s position, immediately concluded that as the signing and approving authority of the ECCissued to PHILJAS, it was incumbent upon petitioner to conduct actual monitoring and enforce strictcompliance with the terms and conditions of the ECC.

The applicable administrative orders provide that the function of monitoring environmental programs, projects and activities in the region is lodged with the Regional Technical Director, not with theRegional Executive Director, the position occupied by petitioner. Under DAO 38-1990, the followingwere the functions attached to the office of petitioner, to wit:

“I. REGULATORY MATTERS

“D. REGIONAL EXECUTIVE DIRECTOR

“1. Forest Management

“2. Land Management

“3. Mines and Geo-Sciences Development

“4. Environmental Management

“4.1 Issues authority to construct and permit to operate pollution controlequipment/devices including the collection of corresponding fees/charges.

“4.2 Issues accreditation of pollution control office of industrial firms and localgovernment entities.

“4.3 Hears/gathers evidences or facts on pollution cases as delegated by the PollutionAdjudication Board.





“4.4. Approves plans and issues permit for mine tailings disposal, includingenvironmental rehabilitation plans.”[9]

Clearly, there is no mention of the responsibility of a regional executive director to monitor projects.More apropos is the description of the functions of a regional technical director, to wit:

“E. REGIONAL TECHNICAL DIRECTOR

“1. Forest Management“2. Land Management

“3. Mines and Geo-Sciences Development

“4. Environmental Management

“4.1 Issues clearance certificate to vehicles which have passed the smoke-belching test.

“4.2 Issues pollution clearance and temporary permit to operate pollution control devicesincluding the collection of corresponding fees/charges.

“4.3 Conducts monitoring and investigation of pollution sources and control facilities.

“4.4 Supervises, coordinates and monitors the implementation of environmentalprograms, projects and activities in the region.”[10] [emphasis supplied]

Furthermore, monitoring is defined in DAO No. 21, Series of 1992, as the activity designed to gaugethe level of compliance with the conditions stipulated in the ECC,[11] and in the EIS[12] or PD[13] submitted.[14] This is the function of the PENR and CENR offices as mandated in DAO No. 37, Seriesof 1996.[15] Particularly, it provided that:

“Section 10. Compliance Monitoring

“x x x

“b. Monitoring of compliance with the proponent’s ECC issued pursuant to an IEE,[16] and applicablelaws, rules and regulations, shall be undertaken by the concerned PENRO and CENRO with supportfrom the Regional Office and/or EMB whenever necessary.”

Hence, how could petitioner be guilty of neglecting a duty, which is not even his to begin with?Administrative liability could not be based on the fact that petitioner was the person who signed andapproved the ECC, without proof of actual act or omission constituting neglect of duty.

In the absence of substantial evidence of gross neglect of petitioner, administrative liability could not be based on the principle of command responsibility.[17] The negligence of petitioner’s subordinates isnot tantamount to his own negligence.

It was not within the mandated responsibilities of petitioner to conduct actual monitoring of projects.The principles governing public officers under the Revised Administrative Code of 1987 clearly

provide that a head of a department or a superior officer shall not be civilly liable for the wrongful acts,omissions of duty, negligence, or misfeasance of his subordinates, unless he has actually authorized bywritten order the specific act or misconduct complained of.[18]

The investigation conducted by the Ombudsman refers to the tragic incident in Cherry HillsSubdivision, Antipolo Rizal, where several families lost lives and homes. Despite the fact that whatwas involved was a housing and land development project, petitioner, as the Regional ExecutiveDirector for Region IV, Department of Environment and Natural Resources, was found negligent because he was the one who signed and approved the ECC.

























Documents

Environmental Cases 3