Tano vs Socrates

Natural and Environmental Laws; Constitutional Law; Regalian Doctrine

GR No. 110249; August 21, 1997

FACTS:

On Dec 15, 1992, the Sangguniang Panglungsod ng Puerto Princesa enacted an ordinance banning the shipment of all live fish and lobster outside Puerto Princesa City
from January 1, 1993 to January 1, 1998. Subsequently the Sangguniang Panlalawigan, Provincial Government of Palawan enacted a resolution prohibiting the
catching , gathering, possessing, buying, selling, and shipment of a several species of live marine coral dwelling aquatic organisms for 5 years, in and coming from
Palawan waters.

Petitioners filed a special civil action for certiorari and prohibition, praying that the court declare the said ordinances and resolutions as unconstitutional on the
ground that the said ordinances deprived them of the due process of law, their livelihood, and unduly restricted them from the practice of their trade, in violation of
Section 2, Article XII and Sections 2 and 7 of Article XIII of the 1987 Constitution.

ISSUE:

Are the challenged ordinances unconstitutional?

HELD:

No. The Supreme Court found the petitioners contentions baseless and held that the challenged ordinances did not suffer from any infirmity, both under the
Constitution and applicable laws. There is absolutely no showing that any of the petitioners qualifies as a subsistence or marginal fisherman. Besides, Section 2 of
Article XII aims primarily not to bestow any right to subsistence fishermen, but to lay stress on the duty of the State to protect the nations marine wealth. The so-
called preferential right of subsistence or marginal fishermen to the use of marine resources is not 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.

In addition, one of the devolved powers of the LCG on devolution is the enforcement of fishery laws in municipal waters including the conservation of mangroves.
This necessarily includes the enactment of ordinances to effectively carry out such fishery laws within the municipal waters. In light of the principles of
decentralization and devolution enshrined in the LGC and the powers granted therein to LGUs which unquestionably involve the exercise of police power, the validity
of the questioned ordinances cannot be doubted.

The Philippine Fisheries Code: National Policy for Sustainable Fisheries

Historical Development of the Philippine Fisheries Legislation

Fishery specific policies in the Philippines were not apparent until 1932 when the first Fisheries Act was introduced placing fisheries management under
the jurisdiction of the Secretary of Agriculture and Natural Resources. Notable provision in the Act is on trade which limits the importation and
exportation of any fish, mollusks, crustaceans, or amphibian or other aquatic animal, adult, young, or fry, or fish eggs. It linked the economic relationship
with the United States allowing its citizens and corporations to access fishing grounds through a permit issued by the national government.

The unregulated method of fishing of commercial operators and small fisherfolk through the years led to the depletion of stock and degradation of the
environment prompting the promulgation of the Presidential Decree (PD) No. 534 (1974) instituting high penalties ranging up to 12 years or life
imprisonment in extreme cases for illegal fishing, i.e. fishing with obnoxious or poisonous substances, explosives, and electro-fishing.

All prior legislations in fishery were codified into the Fisheries Decree of 1975 (PD 704). The law provided opportunities to foreign investors (but
maintaining 60% capital stock to local investors) to improve global competitiveness by modernizing the industry through these investments. It
encouraged maximum economic utilization of fishery resources in an integrated manner while putting some limits to fishing by reserving the seven-
kilometer zone to small fisherfolk. More regulations were put in place but the inability of concerned agencies to enforce regulatory and management
systems eventually led to stock depletion and resource degradation.

Fisheries Code of 1998

Republic Act (RA) 8550 is the response to address the trend of blind resource exploitation. This Act, otherwise known as the Fisheries Code of 1998, is
the governing law in Philippine fisheries to address the interconnected issues of resource degradation and unrelenting poverty among municipal fishers.
It provides for a national policy on sustainable use of fishery resources to meet the growing food needs of the population. It calls for management of
fishery and aquatic resources in a manner that is consistent with the concept of an integrated coastal area management in specific natural fishery
management areas.

The Code also promotes and protects the rights of municipal fisherfolk, especially in the preferential use of municipal waters. Resident fisherfolks and
their cooperatives/organizations are given the priority to exploit the expanded 15-kilometer limit of municipal waters. It further mandates the government
to promote the general welfare of municipal fishers through provision of support services and fair labor practices.

The Fisheries Code was passed by the Philippine Congress on 19 February 1998 and was subsequently approved by the Office of the President on 25
February 1998. The law became effective on 23 June 1998. It contains nine (9) chapters with provisions on utilization, management, development,
conservation and allocation system of fisheries and aquatic resources; reconstitution of the Bureau of Fisheries and Aquatic Resources and creation of
the Fisheries and Aquatic Resources Management Councils; fishery reserves, refuge and sanctuaries; and research and development. One chapter
each is dedicated for prohibitions and penalties; general provisions; transitory and final provisions.

1
Efforts to address resource degradation

Overfished or in danger of being overfished areas are established as fish refuge and marine sanctuaries. These are designated areas where fishing and
other forms of activities that may damage the ecosystem are regulated, restricted or prohibited, depending on their degree of harm. The law also
provides that at least 15% of the total coastal areas in each municipality should be designated as fishery refuge and sanctuaries to establish more fish
sanctuaries and marine protected areas.

Participatory management through various levels of Fisheries and Aquatic Resources Management Councils (FARMCs) is enhanced and
institutionalized by the law. FARMCs are established in the national level and all municipalities/cities abutting municipal waters to act as an advisory and
recommendatory body and to assist in the enforcement of ordinances and other fishery laws, rules and regulations. The combination of organized fishers
and local government units (LGUs) is intended to serve as a venue for close collaboration among civil society groups in the management of contiguous
resources.

Efforts to address poverty

Resident municipal fisherfolk and their cooperatives/organizations are given preferential fishing privileges in the municipal waters which include not only
streams, lakes and rivers within the municipality/city but also marine waters within the 15-kilometer zone from the coastline. Small and medium
commercial fishing vessels may be allowed but only within the 10.1 to 15-kilometer zone of municipal waters and under stringent condition through an
ordinance. In the same way, the granting of Fishpond Lease Agreements (FLAs) gives preference to municipal fisherfolk and their organization as well
as in the operation of fish pens, fish cages, fish traps and other structures.

Furthermore, the Code mandates the government to provide support services in the form of research and extension, credit, post-harvest facilities,
infrastructures, fisherfolk settlements and entitlement to same privileges as those accorded to other workers under the Philippine Labor Code.

Conclusion

Poverty in the fisheries sector is attributable to low productivity of aquatic resources brought about by degradation, stock depletion and resource use
conflict in the coastal waters. The Philippine Fisheries Code deems the conservation and protection of the fishery resources imperative to improve
productivity. Various processes to promote sustainable fisheries which include participatory management through FARMCs and establishment of fish
refuge, sanctuaries and marine protected areas are stipulated in the Code. The extent of jurisdiction of the local government units (LGUs) over municipal
waters is clarified as well as the operation of commercial vessels in municipal waters. An extensive list of penal laws is also codified to facilitate
enforcement and local legislation. However, the remaining challenge, albeit a pivotal one to ensure sustainable fishery resource management, concerns
strict enforcement of the provisions of the Fisheries Code.

A short policy paper submitted to the Food and Fertilizer Technology Center (FFTC) for the project titled Asia-Pacific Information Platform in
Agricultural Policy. Short policy papers, as corollary outputs of the project, describe pertinent Philippine laws and regulations on agriculture, fisheries
and natural resources.

Philippine Point Person to the FFTC Project on Asia-Pacific Information Platform in Agricultural Policy and Director, Senior Science Research Specialist
and Science Research Analyst, respectively, of the Socio-Economics Research Division-Philippine Council for Agriculture, Aquatic and Natural
Resources Research and Development (SERD-PCAARRD) of the Department of Science and Technology (DOST), Los Baos, Laguna, the Philippines.

WHAT YOU SHOULD KNOW ABOUT THE CLEAN WATER ACT

CLEAN WATER ACT

Why the need for the Clean Water Act?

As early as 1996, monitoring of the countrys rivers showed that only 51% of the classified rivers still met the standards for their most beneficial use. The rest
were already polluted from domestic, industrial and agricultural sources.

Most studies point to the fact that domestic wastewater is the principal cause of organic pollution (at 48%) of our water bodies. Yet, only 3% of investments in
water supply and sanitation were going to sanitation and sewage treatment.

A recent World Bank report pointed out that Metro Manila was second to the lowest in sewer connections among major cities in Asia and less than 7% compared
to 20% for Katmandu, Nepal and 30% for Dhaka, Bangladesh.

Thirty-one percent (31%) of all illnesses in the country are attributed to polluted waters. Clearly, to ensure access to clean water for all Filipinos, it was
imperative that government put together a comprehensive strategy to protect water quality.

What is the Clean Water Act?

The Philippine Clean Water Act of 2004 (Republic Act No. 9275) aims to protect the countrys water bodies from pollution from land-based sources (industries
and commercial establishments, agriculture and community/household activities). It provides for a comprehensive and integrated strategy to prevent and
minimize pollution through a multi-sectoral and participatory approach involving all the stakeholders.

Highlights of the Clean Water Act

How will water quality be managed?

2
Management of water quality will either be based on watershed, river basin or water resources region. Water quality management areas with similar
hydrological, hydrogeological, meteorological or geographic conditions which affect the reaction and diffusion of pollutants in water bodies are to be designated
by the DENR in coordination with the National Water Resources Board (NWRB).

Who will manage these areas?

Management will be localized. Multi-sectoral governing boards will be established to manage water quality issues within their jurisdiction.

Who are the members of the Governing Boards?

Governing Boards shall be composed of representatives of mayors and governors as well as local government units, representatives of relevant national
government agencies, duly registered non-government organizations, the concerned water utility sector and the business sector.

What are the functions of the Governing Boards?

The Governing Boards will formulate strategies to coordinate policies necessary for the effective implementation of this Act. They will create a multi-sectoral
group to establish and effect water quality surveillance and monitoring.

How will discharges of wastewater be controlled?

All owners or operators of facilities that discharge wastewater are required to get a permit to discharge from the DENR or the Laguna Lake Development
Authority. Existing industries without any permit are given 12 months from the effectivity of the implementing rules and regulations (IRR) promulgated
pursuant to this Act to secure a permit to discharge.

How will domestic wastewater be addressed?

The Department of Public Works and Highways (DPWH), in coordination with local government units will prepare a national program on sewage and septage
management not later than 12 months from effectivity of this Act. A priority list will likewise be prepared which will be the basis for the allotment of funds on
an annual basis by the national government for the construction and rehabilitation of required facilities.

On the other hand, LGUs are to provide the land including road right of the way for the construction of sewage and/or septage treatment facilities and raise
funds for the operations and maintenance of said facilities.

The Department of Health (DOH) will formulate guidelines and standards for the collection, treatment and disposal of sewage as well as the guidelines for the
establishment and operation of centralized sewage treatment system. The MWSS and other agencies mandated to provide water supply and sewerage facilities
are required to connect existing sewage lines, subject to the payment of sewerage service charges/fees within five years following effectivity of this Act.

All sources of sewage and septage are required to comply with the law.

How will the discharge of wastewater be discouraged?

Anyone discharging wastewater into a water body will have to pay a wastewater charge. This economic instrument which will be developed in consultation
with all concerned stakeholders is expected to encourage investments in cleaner production and pollution control technologies to reduce the amount of
pollutants generated and discharged.

Effluent trading per management area will also be allowed.

Rewards will also be given to those whose wastewater discharge is better than the water quality criteria of the receiving body of water. Fiscal and non-fiscal
incentives will also be given to LGUs, water districts, enterprise, private entities and individuals who develop and undertake outstanding and innovative projects
in water quality management.

What safeguards are provided for?

All possible dischargers are required to put up an environmental guarantee fund (EGF) as part of their environmental management plan. The EGF will finance
the conservation of watersheds and aquifers, and the needs of emergency response, clean up or rehabilitation.

What are the prohibited acts under R.A. 9275?

Among others, the Act prohibits the following:

1. Discharging or depositing any water pollutant to the water body, or such which will impede natural flow in the water body
2. Discharging, injecting or allowing to enter into the soil, anything that would pollute groundwater
3. Operating facilities that discharge regulated water pollutants without the valid required permits
4. Disposal of potentially infectious medical waste into sea by vessels
5. Unauthorized transport or dumping into waters of sewage sludge or solid waste.
6. Transport, dumping or discharge of prohibited chemicals, substances or pollutants listed under Toxic Chemicals, Hazardous and Nuclear
7. Wastes Control Act (Republic.Act No. 6969)
8. Discharging regulated water pollutants without the valid required discharge permit pursuant to this Act
9. Noncompliance of the LGU with the Water Quality Framework and Management Area Action Plan
10. Refusal to allow entry, inspection and monitoring as well as access to reports and records by the DENR in accordance with this Act
11. Refusal or failure to submit reports and/or designate pollution control officers whenever required by the DENR in accordance with this Act
12. Directly using booster pumps in the distribution system or tampering with the water supply in such a way to alter or impair the water quality
13. Operate facilities that discharge or allow to seep, willfully or through grave negligence, prohibited chemicals, substances, or pollutantslisted under
R.A. No. 6969, into water bodies.
14. Undertake activities or development and expansion of projects, or operating wastewater treatment/sewerage facilities in violation of P.D.1586 and
its IRR.
What are the fines and penalties imposed on polluters?

3
 The following are among the fines and penalties for violators of this Act and its IRR:

Upon the recommendation of the Pollution Adjudication Board (PAB), anyone who commits prohibited acts such as discharging untreated wastewater into any
water body will be fined for every day of violation, the amount of not less than Php 10,000 but not more than Php 200,000.

Failure to undertake clean-up operations willfully shall be punished by imprisonment of not less than two years and not more than four years. This also includes
a fine of not less than Php 50,000 and not more than Php 100,000 per day of violation. Failure or refusal to clean up which results in serious injury or loss of life
or lead to irreversible water contamination of surface, ground, coastal and marine water shall be punished with imprisonment of not less than 6 years and 1
day and not more than 12 years and a fine of Php 500,000/day for each day the contamination or omission continues.

In cases of gross violation, a fine of not less than Php 500,000 but not more than Php 3,000,000 will be imposed for each day of violation. Criminal charges may
also be filed.

Who should implement the Clean Water Act?

The DENR is the primary government agency responsible for the implementation and enforcement of this Act, with the support of other government
organizations, local government units, non -government organizations and the private sector.

Towards this end, the DENR will review and set affluent standards, review and enforce water quality guidelines, classify groundwater sources and prepare a
national groundwater vulnerability map, classify or reclassify water bodies, establish internationally accepted procedures for sampling and analysis, prepare
an integrated water quality management framework and subsequently prepare 10-year management plans for each water management area.

The roles of other key government agencies are:

The Philippine Coast Guard shall enforce water quality standards in marine waters, specifically from offshore sources.
The Department of Public Works and Highways through its attached agencies shall provide sewerage and sanitation facilities, and the efficient and safe
collection, treatment and disposal of sewage within their area of jurisdiction.
The Department of Agriculture shall formulate guidelines for the re-use of wastewater for irrigation and other agricultural uses and for the prevention, control
and abatement of pollution from agricultural and aquaculture activities.
The Department of Health shall set, revise and enforce drinking water quality standards.
The Department of Science and Technology shall evaluate, verify, develop and disseminate pollution prevention and cleaner production technologies.
The Department of Education, Commission on Higher Education, Department of Interior and Local Government, and the Philippine Information Agency shall
prepare and implement a comprehensive and continuing public education and information program.

List of National Laws Relevant to the protection of marine wildlife

Click on the links below to view the laws in their entirety.

Republic Act Brief Description

RA 7586(1992) Provides for the establishment and management of protected areas in the Philippines.
National Integrated
Protected Areas System
(NIPAS) Act

RA 8550(1998) Protects endangered species

Philippine Fisheries Code
[Sec. 11, 97]
SEC. 11. Protection of Rare, Threatened and Endangered Species.
The Department shall declare closed seasons and take conservation and rehabilitation
measures for rare, threatened and endangered species, as it may determine, and shall
ban the fishing and/or taking of rare, threatened and/or endangered species, including
their eggs/offspring as identified by existing laws in concurrence with concerned
government agencies.
SEC. 97. Fishing or Taking of Rare, Threatened or Endangered Species.
It shall be unlawful to fish or take rare, threatened or endangered species as listed in the
CITES and as determined by the Department.

RA 9147(2001) Dedicated to the conservation of the countrys wildlife resources and their habitat for
Wildlife Resources sustainability.
Conservation and
Protection Act
[Chap. 3, Art. 2-5]

RA 8485(1998) Protects and promotes the welfare of all animals in the Philippines by supervising and
Animal Welfare Act regulating the establishment and operations of all facilities utilized for breeding,
maintaining, keeping, treating or training of all animals either as objects of trade or as
household pets.

4
 RA 7160(1991) Covers the implementation of fishery laws in local governments.
Local Government Code

RA 8749(1999) Recognizes the responsibility of local government units to deal with environmental
Clean Air Act problems

RA 9003 Covers the implementation of a systematic, comprehensive and ecological solid waste
Ecological Solid Waste management program.
Management Act

PD 1586 Establishment of an environmental impact statement system, including other

Philippines Environmental environmental management related measures and for other purposes.
Impact Statement System

RA 10067(2010) Ensures the protection and conservation of the globally significant economic, biological,
Tubbataha Act sociocultural, educational, and scientific values of the Tubbataha Reefs

Writ of Direct respondent to permanently cease from committing acts or neglecting the
Kalikasan(2010) performance of a duty in violation of environmental laws resulting in environmental
destruction or damage

Administrative Orders
Acts of the President which relate to particular aspect of governmental operations in pursuance of his duties as administrative head shall be promulgated
in administrative orders. Administrative Code of 1987, Book III, Chapter 2, Section 3.

Administrative Order Covers

DAO 55 (1991) Dugong

DENR

DAO 15 (2004) Hawksbill and other turtles

DENR

FAO 185 (1992) All dolphins

BFAR

FAO 185-1 (1997) Ammendment on FAO 185 (1992), by adding whales

BFAR

FAO-193 (1998) Whale sharks and manta ray

BFAR

FAO-208 (2001) Rare, threatened, and endangered species

BFAR

FAO-233 (2010) Aquatic wildlife conservation

BFAR

FAO-233-1 (2011) Ammendment on FAO 233 (2011)

BFAR

Joint AO 1 (2005) Guidelines for cetacean interaction; whale watching

BFAR-DOT

AO 282 (2010) Enhancement of whale shark protection

Malacanang

5
International Agreements

Our government has also signed agreements with other countries for the conservation of our marine wildlife.

International Agreement Brief Description

Rio Declaration on Environment SEC. 2, CHAP. 17 Protection of the oceans, all kinds of seas, including
and Development & Agenda 21 enclosed and semi-enclosed seas, and coastal areas and the protection,
(Section 2, Chap. 17) rational use and development of their living resources

United Nations Convention on Part XIII Marine Scientific Research

the Law of the Sea(UNCLOS)
Part XIII

Convention on Biological Article 6 Develop national strategies, plans or programmes for the
Diversity(CBD) conservation and sustainable use of biodiversity or adapt existing strategies for
this purpose

Convention on the International An international agreement between governments aimed at ensuring that the
Trade of Endangered Species of trade of wild animals worldwide does not threaten their survival. Appendix I
Wild Flora and Fauna (CITES) (banned), II (monitored), III (protected in at least one country to control the
Appendix I, II, III trade)

Convention on Migratory It is an intergovernmental treaty, concluded under the guidance of the United
Species(CMS) Nations Environment Programme (UNEP), concerned with the conservation of
Appendix I, II wildlife and habitats on a global scale.It aims to conserve terrestrial, aquatic
and avian migratory species throughout their range.

CMS MoU Turtles IOSEA The MoU puts in place a framework through which States of the Indian Ocean
and South-East Asian region, as well as other concerned States, can work
together to conserve and replenish depleted marine turtle populations for
which they share responsibility.

CMS MoU Sharks A legally non-binding international instrument that aims to achieve and
maintain a favorable conservation status for migratory sharks based on the
best available scientific information and taking into account the socio-economic
value of these species for the people in various countries.

CMS MoU Dugong The MoU is designed to facilitate national level and transboundary actions that
will lead to the conservation of dugong populations and their habitats. The
CMP provides the basis for focused species and habitat-specific activities,
coordinated across the Dugongs migratory range.

6
Presidential Decree No. 979 otherwise known as the Marine Pollution Decree of 1976
Year of Enactment and Enacted and Implemented in 1976
Implementation

Purpose To prevent, mitigate or eliminate the increased damages of marine resources as a result of pollution

Control Area All Marine Waters

Overview The marine environment and the living organisms which it supports are of vital importance to humanity, and all
people have an interest in assuring that it is managed and protected, and its quality is not impaired
The capacity of the sea to assimilate wastes and render them harmless, and its ability to regenerate nature
resources is limited
Marine pollution originates from many sources
There is a need to control public and private activities that cause damage to the marine environment by using the
best practicable means and by developing improved disposal processes to minimize harmful wastes
There is an urgent need to prevent, mitigate or eliminate the increasing damages to marine resources as a result
of pollution

Features National Pollution Control Commission has the primary responsibility to promulgate national rules and policies
governing marine pollution, and to issue the same upon consultation with the Philippine Coast Guard
The Philippine Coast Guard has the primary responsibility of enforcing the laws, rules and regulations governing
marine pollution
Prohibited Acts are as follows:
o Discharge, dump, or suffer, permit the discharge of oil, noxious gaseous from or out of any ship,
vessel, barge, or any other floating craft, or other man-made structures at sea, by any method, means
or manner, into or upon the territorial and inland navigable waters of the Philippines
o Throw, discharge or deposit, dump, or cause, suffer or procure to be thrown, discharged, or deposited
either from or out of any ship, barge, or other floating craft or vessel of any kind, or from the shore,
wharf, manufacturing establishment, or mill of any kind, any refuse matter of any kind or description
whatever other than that flowing from streets and sewers and passing therefrom in a liquid state into
tributary of any navigable water from which the same shall float or be washed into such navigable
water
o Deposit or cause, suffer or procure to be deposited material of any kind in any place on the bank of
any navigable water, or on the bank of any tributary of any navigable water, where the same shall be
liable to be washed into such navigable water, either by ordinary or high tides, or by storms or floods,
or otherwise, whereby navigation shall or may be impeded or obstructed or increase the level of
pollution of such water
Violators shall be liable for a fine or imprisonment for each offense without prejudice to the civil liability of the
offender, clearance from the port of the Philippines of the vessel from which oil or other harmful substances are
discharged may be withheld until the fine is paid
The Philippine Coast Guard shall develop an adequate capability for containment and recovery of spilled oil for
inland waters and high seas use