Tano, et al. vs. Socrates, et al.

,
G.R. No. 110249, August 21, 1997
EN BANC, DAVIDE, JR. (J)

TOPIC: The Three Great Southern Powers of the Government as applied to LGUs (Local Police Power; General Welfare
Clause [Sec. 16]; Basic Services and Facilities [Sec. 17])

NATURE OF THE CASE:

This petition is one for "Certiorari, Injunction With Preliminary and Mandatory Injunction, with Prayer for Temporary
Restraining Order" and pray that this Court:
(1) declare as unconstitutional:
(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 Acting City 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 the enforcement thereof; and
(3) restrain respondents Provincial and City Prosecutors of Palawan and Puerto Princesa City and Judges of the
RTCs, MeTCs and MCTC in Palawan from assuming jurisdiction over and hearing cases concerning the violation
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.

PETITIONER/S:
Two sets of petitioners in this case

1st Set:
 Alfredo Tano, Baldomero Tano, Danilo Tano, Romualdo Tano, Teocenes Midello, Angel de Mesa, Eulogio
Tremocha, Felipe Ongonion, Jr., Andres Linijan, and Felimon de Mesa criminally charged with violating
Sangguniang Panlalawigan Resolution No. 33 and Ordinance No. 2, Series of 1993
 Robert Lim and Virginia Lim charged with violating City Ordinance No. 15-92 of Puerto Princesa City and
Ordinance No. 2, Series of 1993
 All of them, with the exception of Teocenes Midello, Felipe Ongonion, Jr., Felimon de Mesa, Robert Lim and
Virginia Lim, are likewise the accused in of Ordinance No. 2 of the Sangguniang Panlalawigan of Palawan

Primary interest: To prevent the prosecution, trial and determination of the criminal cases until the constitutionality or
legality of the Ordinances they allegedly violated shall have been resolved.

2nd Set:
 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.

Primary interest: Claims that being fishermen or marine merchants, they would be adversely affected by the ordinances.

RESPONDENT/S:
Hon. Gov. Salvador P. Socrates, Members of Sangguniang Panlalawigan of Palawan, City Mayor Edward Hagedorn,
Members of Sangguniang Panlungsod ng Puerto Princesa, All Members of Bantay Dagat, Members of PNP of Palawan,
Provincial and City Prosecutors of Palawan and Puerto Princesa City, and all Judges of Palawan, Regional, Municipal and
Metropolitan.
FACTS:
December 15, 1992 - The Sangguniang Panlungsod ng Puerto Princesa City enacted Ordinance No. 15-92 which took
effect on January 1, 1993 banning the shipment of all live fish and lobster outside Puerto Princesa City from January 1,
1993 to January 1, 1998 except for sea bass, catfish, mudfish, and milkfish fries.

January 22, 1993 dated city ordinance was implement by then Acting City Mayor Amado L. Lucero issued Office Order
No. 23, Series of 1993 dated authorizing and directing the checking/conducting of necessary inspections on cargoes
containing live fish and lobster being shipped out from the Puerto Princesa Airport, Puerto Princesa Wharf or at any port
within the jurisdiction of the City to any point of destinations either via aircraft or seacraft. The purpose of the inspection
is to ascertain whether the shipper possessed the required Mayor’s Permit 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 (BFAR).

February 19, 1993 - The Sangguniang Panlalawigan, Provincial Government of Palawan enacted Resolution No. 33,
Ordinance No. 2, Series of 1993, for the purpose of prohibiting the catching, gathering, possessing, buying, selling and
shipment of live marine coral dwelling, aquatic organisms for a period of five (5) years in and coming from Palawan
Waters.

Respondents implemented the said ordinances thereby depriving all the fishermen of the whole province of Palawan and
the City of Puerto Princesa of their only means of livelihood and the petitioners Airline Shippers Association of Palawan
and other marine merchants from performing their lawful occupation and trade;

Without seeking redress from the concerned LGUs, prosecutor’s office and courts, petitioners directly invoked the original
jurisdiction of the SC by filing this petition on 4 June 1993. In sum, petitioners contend that:

1) Ordinances deprived them of 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.
2) Office Order No. 23 contained no regulation nor condition under which the Mayor’s permit could be granted or
denied; in other words, the Mayor had the absolute authority to determine whether or not to issue the permit.
3) Ordinance No. 2 of the Province of Palawan "altogether prohibited the catching, gathering, possession, buying,
selling and shipping of live marine coral dwelling organisms, without any distinction whether it was caught or
gathered through lawful fishing method," and took away the right of petitioners-fishermen to earn their livelihood
in lawful ways; and insofar as petitioners-members of Airline Shippers Association are concerned, they were
unduly prevented from pursuing their vocation and entering "into contracts which are proper, necessary, and
essential to carry out their business endeavors to a successful conclusion."
4) Ordinance No. 2 of the Sangguniang Panlalawigan is null and void, the criminal cases based thereon against
petitioners Tano and the others have to be dismissed.

June 15, 1993 Resolution - Respondents were required to comment on the petition

Comment (August 13, 1993) - Public respondents Governor Socrates and Members of the Sangguniang Panlalawigan of
Palawan defended the validity of Ordinance No. 2, Series of 1993, as a valid exercise of the Provincial Government’s
power under the general welfare clause (Section 16 of the Local Government Code of 1991 [LGC]), and its specific
power to protect the environment and impose appropriate penalties for acts which endanger the environment ,
such as dynamite fishing and other forms of destructive fishing under the provisions of the LGC. They claimed that:

 The Province of Palawan had "the right and responsibility . . . to insure that the remaining coral reefs, where fish
dwells [sic], within its territory remain healthy for the future generation."
 The Ordinance covered only live marine coral dwelling aquatic organisms which were enumerated in the
ordinance and excluded other kinds of live marine aquatic organisms not dwelling in coral reefs;
 The prohibition was for only five (5) years to protect and preserve the pristine coral and allow those damaged to
regenerate.
  There was no violation of the due process and equal protection clauses of the Constitution since public hearings
were conducted before the enactment of the Ordinance which, undoubtedly, had a lawful purpose and employed
reasonable means
 A substantial distinction existed "between a fisherman who catches live fish 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."
 The Ordinance applied equally to all those belonging to one class.

October 25, 1993 - Petitioners filed an Urgent Plea for the Immediate Issuance of a Temporary Restraining Order,
claiming that despite the pendency of this case, Branch 50 of the RTC of Palawan was bent on proceeding with criminal
case against petitioners Danilo Tano, Alfredo Tano, Eulogio Tremocha, Romualdo Tano, Baldomero Tano, Andres Linijan
and Angel de Mesa for violation of Ordinance No. 2.

November 11, 1993 - A TRO was issued directing Judge Angel Miclat of said court to cease and desist from proceeding
with the arraignment and pre-trial of the criminal case.

September 1, 1994 Resolution – the Court resolved to consider the comment on the petition as the Answer, gave due
course to the petition and required the parties to submit their respective memoranda.

April 22, 1997 – the Court ordered to implead as party respondents the Department of Agriculture (DA) and the BFAR and
required the OSG to comment on their behalf. But in light of the latter’s motion of 9 July 1997 for an extension of time to
file the comment which would only result in further delay, the Court dispensed with said comment.

ISSUE:
Whether or not the challenged Ordinances are Constitutional.

RULING:
The Court resolved to dismiss this petition for want of merit, and on 22 July 1997, assigned it to the ponente to write the
opinion of the Court.

It is settled that laws including ordinances enacted by LGUs enjoy the presumption of constitutionality. To overthrow this
presumption, there must be a clear and unequivocal breach of the Constitution, not merely a doubtful or argumentative
contradiction. In short, the conflict with the Constitution must be shown beyond reasonable doubt. Where doubt exists,
even if well-founded, there can be no finding of unconstitutionality.

The Court found petitioners’ contentions baseless and so hold that the former do not suffer from any infirmity, both under
the Constitution and applicable laws. Petitioners specifically point to Section 2, Article XII and Sections 2 and 7, Article
XIII of the Constitution as having been transgressed by the Ordinances.

o Section 2 of Article XII provides that the State shall protect the nation’s marine wealth in its archipelagic waters,
territorial sea, and exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens
and that the Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens, as well
as cooperative fish farming, with priority to subsistence fishermen and fishworkers in rivers, lakes, bays, and
lagoons.

o Sections 2 and 7 of Article XIII , provides that the promotion of social justice shall include the commitment to
create economic opportunities based on freedom of initiative and self-reliance (Sec. 2) and that the State shall
protect the rights of subsistence fishermen, especially of local communities, to the preferential use of the
communal marine and fishing resources, both inland and offshore (Sec. 7).

There is absolutely no showing that any of the petitioners qualifies as a subsistence or marginal fisherman. In their petition
there is no qualification as to their status:
 o Airline Shippers Association of Palawan is self-described as "a private association composed of Marine
Merchants;"
o Robert Lim and Virginia Lim, as "merchants;"
o The rest of the petitioners claim to be "fishermen"

Since the Constitution does not specifically provide a definition of the terms "subsistence" or "marginal" fishermen, they
should be construed in their general and ordinary sense.

o Marginal fisherman - an individual engaged in fishing whose margin of return or reward in his harvest of fish as
measured by existing price levels is barely sufficient to yield a profit or cover the cost of gathering the fish,
o Subsistence fisherman is one whose catch yields but the irreducible minimum for his livelihood.
o Marginal farmer or fisherman - "An individual engaged in subsistence farming or fishing which shall be limited to
the sale, barter or exchange of agricultural or marine products produced by himself and his immediate family."
[Section 131(p) of the LGC (R.A. No. 7160)]

It bears repeating that nothing in the record supports a finding that any petitioner falls within these definitions.

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 nation’s marine wealth. What the provision merely recognizes is that the State may allow, by law,
cooperative fish farming, with priority to subsistence fishermen and fishworkers in rivers, lakes, bays and lagoons.

Our survey of the statute books reveals that the only provision of law which speaks of a preferential right of marginal
fishermen is Section 149 (Fishery Rentals, Fees and Charges) of the LGC, which pertinently provides that the sangguniang
bayan may grant fishery privileges to erect fish corrals, oyster, mussels or other aquatic beds or bangus fry areas, within a
definite zone of the municipal waters, as determined by it. Provided, however, that duly registered organizations and
cooperatives of marginal fishermen shall have the preferential right to such fishery privileges . . .

In a Joint Administrative Order No. 3 dated 25 April 1996, the DA Secretary and the DILG Secretary prescribed guidelines
concerning 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 fishing resources, but of their
protection, development and conservation. The ordinances in question are meant precisely to protect and conserve our
marine resources to the end that their enjoyment may be guaranteed not only for the present generation, but also for the
generations to come.

The so-called "preferential right" of subsistence or marginal fishermen to the use of marine resources is not at all
absolute:
o The Regalian Doctrine provides that marine resources belong to the State, and, pursuant to the 1st par. of Sec. 2,
Article XII of the Constitution, their "exploration, development and utilization . . . shall be under the full control
and supervision of the State."
o The framers of the Constitution imply certain restrictions on whatever right of enjoyment there may be in favor
of anyone. The exchange between Commissioner Francisco Rodrigo and Commissioner Jose F.S. Bengzon, Jr.,
took place providing that a marginal fisherman is subject to whatever rules and regulations and local laws that
may be passed, may be existing or will be passed.

As to the right to a balanced and healthful ecology correlative to the duty of the LGUs to enhance the right of the
people to a balanced ecology

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 mentions this 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 its efficient and effective governance, and those which are
essential to the promotion of the general welfare. Within their respective territorial jurisdictions, local government units shall
ensure and support, 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, enhance economic prosperity and social justice, promote full employment among
their residents, maintain peace and order, and preserve the comfort and convenience of their inhabitants. (Emphasis supplied).

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 accelerating economic development and upgrading the quality of life
for the people of the community." The LGC vests municipalities with the power:
o to grant fishery privileges in municipal waters and impose rentals, fees or charges therefor;
o to penalize, by appropriate ordinances, the use of explosives, noxious or poisonous substances, electricity, muro-
ami, and other deleterious methods of fishing; and
o to prosecute any violation of the provisions of applicable fishery laws.

Further, the sangguniang bayan, the sangguniang panlungsod and the sangguniang panlalawigan are directed to enact
ordinances 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 which endanger the environment such as
dynamite 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."

As to the enforcement of Fishery Laws as a devolved power of the LGC

The centerpiece of LGC is the system of decentralization as expressly mandated by the Constitution. Indispensable to
decentralization 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 local government unit. Any fair and reasonable doubt as to the existence of the power
shall be interpreted in favor of the local government unit concerned." Devolution refers to the act by which the National
Government confers power and authority upon the various local government units to perform specific functions and
responsibilities.

One of the devolved powers enumerated in the section of the LGC 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.

These "fishery laws" which local government units may enforce can be found under Section 17(b) (2) (i) and those
specifically devolved insofar as the control and regulation of fishing in municipal waters and the 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 DA and the DILG.

In light then of the principles of decentralization and devolution enshrined in the LGC and the powers granted therein to
local government units under Section 16 (the General Welfare Clause), and under Sections 149, 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.
As to the relation between the assailed Ordinances and the aforesaid powers of the Sangguniang Panlungsod of the
City of Puerto Princesa and the Sangguniang Panlalawigan of the Province of Palawan to protect the environment.

The purpose of the Ordinances as set forth in the statement of purposes or declaration of policies quoted earlier 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;
(2) to protect the coral in the marine waters of the City of Puerto Princesa and the Province of Palawan from further
destruction due to illegal fishing activities.

The first objective is well within the devolved power to enforce fishery laws in municipal waters, such as P.D. No.
1015, which allows the establishment of "closed seasons."

The second objective clearly falls within both the general welfare clause of the LGC and the express mandate
thereunder to cities and provinces to protect the environment and impose appropriate penalties for acts which
endanger the environment.

The prohibition against catching live fish stems, in part, from the modern phenomenon of live-fish trade which entails the
catching of so-called exotic species of tropical fish, not only for aquarium use in the West but also "the market for live
banquet fish in Asia. These exotic species are coral-dwellers, and fishermen catch them by diving in shallow water with
corraline habitats and squirting sodium cyanide poison at passing fish directly or onto coral crevices. The destruction of
coral reefs results in serious, if not irreparable, ecological imbalance, for coral reefs are among nature’s life-support
systems.

The nexus then between the activities barred by Ordinance No. 15-92 of the City of Puerto Princesa and the prohibited
acts provided in Ordinance No. 2, Series of 1993 of the Province of Palawan, on one hand, and the use of sodium cyanide,
on the other, is painfully obvious. In sum, the public purpose and 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 City of Puerto Princesa, we
find nothing therein violative of any constitutional or statutory provision. The Order refers to the implementation of the
challenged ordinance and is not the Mayor’s Permit.

The dissenting opinion of Justice 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 the theory that:
o the subject thereof is within the jurisdiction and responsibility of the BFAR under P.D. No. 704 (Fisheries Decree
of 1975);
o in any event, the Ordinance is unenforceable for lack of approval by the Secretary of the Department of Natural
Resources (DNR), likewise in accordance with P.D. No. 704.

The majority is unable to accommodate this view since the jurisdiction and responsibility of the BFAR under P.D. No. 704,
over the management, conservation, development, protection, utilization and disposition of all fishery and aquatic
resources of the country is not all encompassing:
1) Section 4 thereof excludes from such jurisdiction and responsibility municipal waters, which shall be under the
municipal or city government concerned, except insofar as fishpens and seaweed culture in municipal centers
are concerned.
2) BFAR is no longer under the DNR (now Department of Environment and Natural Resources [DENR]).

Therefore, it is incorrect to say that the challenged Ordinance of the City of Puerto Princesa is invalid or unenforceable
because it was not approved by the Secretary of the DENR. However, the requirement of approval by the Secretary of the
DA (not DENR) of municipal ordinances affecting fishing and fisheries in municipal waters has been dispensed with in
view of the following reasons:
(1) Section 534 (Repealing Clause) of the LGC expressly repeals or amends Section 16 and 29 of P.D. No. 704 45 45a
insofar as they are inconsistent with the provisions of the LGC.
 (2) Under the general welfare clause of the LGC, local government units have the power, inter alia, to enact
ordinances to enhance the right of the people to a balanced ecology.

DECISION:
WHEREFORE, the instant petition is DISMISSED for lack of merit and the TRO order issued on 11 November 1993 is
LIFTED.

Separate Opinions

MENDOZA, J., concurring:

MENDOZA, J wrote separately to emphasize two points:

1) The need to uphold the presumption of validity of the ordinances in this case in view of the total absence of
evidence to undermine their factual basis.
2) The need not to allow a short circuiting of the normal process of adjudication on the mere plea that unless
we take cognizance of petitions like this, by-passing the trial courts, alleged violations of constitutional rights
will be left unprotected, when the matter can very well be looked into by trial courts and in fact should be
brought there.

The ordinances in question in this case are conservation measures which the local governments of Palawan have adopted
in view of the widespread destruction caused by cyanide fishing of corals within their territorial waters. Their
invalidation at this point can result in the untimely exoneration of otherwise guilty parties on the basis of doubtful
constitutional claims.

The ordinances in question are police power measures, enacted by the Province of Palawan and the City of Puerto
Princesa, pursuant to the Local Government Code of 1991 which makes it in fact their duty to enact measures to
"protect the environment and impose appropriate penalties for acts which endanger the environment, such as
dynamite fishing and other forms of destructive fishing. . . ." There is no basis for the claim in the dissenting opinion
that the subject of these ordinances lies within the competence of the national government..

Petitioners’ challenge to the validity of the ordinances does not rest on the claim that the ordinances are beyond the
power of local governments to enact but on the ground that they deprive petitioners of their means of livelihood and
occupation and for that reason violate the Constitution of the Philippines. For support, petitioners invoke the following
constitutional provisions of ART XII, §2, ART. XIII, § and §7. It was precisely to implement Art. XII, §2 that the ordinances
in question were enacted. For, without these marine resources, it would be idle to talk of the rights of subsistence
fishermen to be preferred in the use of these resources.

It has been held that "as underlying questions of fact may condition the constitutionality of legislation of this character,
the presumption of constitutionality must prevail in the absence of some factual foundation of record for overthrowing
the statute:"
o No evidence has been presented by petitioners to overthrow the factual basis of the ordinances — that,
as a result of the use of cyanide and other noxious substances for fishing, only 5% of the coral reefs in Palawan
was in excellent condition, that 75% had been heavily destroyed, and that because of the thriving market for live
fish and lobster here and abroad there was rampant illicit trade in live fish.
o It has not been shown by petitioners that the local legislation here involved is arbitrary or unreasonable.

Indeed, the burden of showing that there is no reasonable relation between the end and the means adopted in this case is
not on the local governments but on petitioners because of the presumption that a regulatory statute is valid in the
absence of factual evidence to the contrary.

One final point. This case was brought to this Court on the bare bones of the ordinances, on the mere claim of petitioner
Alfredo Tano and his 83 co-petitioners that they are subsistence fishermen. There is no telling from the records of this
case whether petitioners are subsistence fishermen or simply impecunious individuals selling their catch to the big
businessmen. The other petitioners are admittedly fish traders, members of an association of airline shippers, to whom
the constitutional provisions obviously do not apply.

Petitioners justify the filing of the present action in this Court on the ground that constitutional questions must be raised
at the earliest time. That is true, but it does not mean that the questions should be presented to the Supreme Court first
hand. Moreover, the rule is not absolute. Constitutional questions like those invoked by petitioners can be raised any time,
even in a motion for reconsideration, if their resolution is necessary to the decision of an actual case or controversy, as
our recent resolution of the constitutionality of R.A. No. 7659, reimposing the death penalty, amply demonstrates.

BELLOSILLO, J., dissenting:

While petitioners apparently instituted the action to enjoin their criminal prosecution, the issue boils down to whether the
subject ordinances of Palawan and Puerto Princesa are valid and enforceable as to authorize the criminal prosecution of
those charged with violation thereof.

The present case clearly falls under the exceptions allowed by law and can be properly treated as a special civil action for
certiorari and prohibition under Rule 65 of the Rules of Court to correct errors of jurisdiction committed by the lower court
arising from the implementation of a void ordinance. The mere absence of a prior motion to quash the Information in the
trial court should not prevent the accused, petitioners herein, from seeking to render null and void the criminal
proceedings below. In criminal cases, when the constitutionality or validity of a law or ordinance is essentially involved,
the same may be raised at any stage of the proceedings . It can also be considered by the appellate court at any time if it
involves the jurisdiction of the lower court.

By considering the purpose and objective of the ordinances as laudable, the majority adopts the affirmative view in
consonance with the general welfare clause and principle of devolution well-rooted in the Local Government Code of
1991. While I agree with the majority that the local leaders of Palawan and Puerto Princesa City be commended for their
efforts to uplift and protect the environment and natural resources within their areas, the general welfare clause is not
the sole criterion to determine the validity or constitutionality of the ordinances. In Magtajas v. Pryce Properties
Corporation, we reiterated that the well-established tests of a valid ordinance are:
(a) It must not contravene the Constitution or any statute;
(b) It must not be unfair or oppressive;
(c) It must not be partial or discriminatory;
(d) It must not prohibit but may regulate trade;
(e) It must be general and consistent with public policy; and,
(f) It must not be unreasonable.

There is no doubt that under P.D. No. 704 fishing, fishery and aquatic resources in municipal waters are under the
jurisdiction of the municipal or city government concerned. However, the same decree imposes a mandatory requirement
directing municipal or city governments to submit ordinances enacted pertinent to fishing and fishery resources to the
Secretary of Agriculture who now has control and supervision over the BFAR). The ordinances will attain full force and
effect only upon the approval of the Secretary of Agriculture.

Ordinance 15-92 of Puerto Princesa City, admittedly, was not submitted to the Secretary of Agriculture through the
BFAR for approval. Such failure of compliance with the law prevented it from becoming valid and effective.
Consequently, Office Order No. 23 of the Mayor of Puerto Princesa City which seeks to implement and enforce Ordinance
No. 15-92 is also ineffective as there is nothing to implement.

To say that Sec. 4 of P.D. No. 704 was impliedly repealed by the Local Government Code is gratuitous . For, if it was the
intention of the legislature to dispense with the requirement of prior approval by the Secretary of Agriculture of
ordinances pertinent to fishery resources, it would have expressly repealed Sec. 4 when, in fact, it did so with Secs. 16 and
29 of P.D. No. 704. The language used in the latter statute must be such as to render it irreconcilable with what has been
formerly enacted. An inconsistency that falls short of that standard does not suffice. When the legislature failed to repeal
Sec. 4 of P.D. No. 704 it accepted and recognized a limitation on the power of the local government to enact ordinances
relative to matters affecting fishery and aquatic resources. A reading of particular provisions of the Local Government
Code itself will reveal that devolution on the powers of the local government pertaining to the protection of environment
is limited and not all-encompassing.

Further, while the Local Government Code is a general law on the powers, responsibilities and composition of different
local government units, P.D. No. 704 is a special law dealing with the protection and conservation of fishing and aquatic
resources including those in the municipal waters. Hence, the special law should prevail over the general law.

It is true that police power can be exercised through the general welfare clause. But, while police power is inherent
in a state, it is not so in municipal corporations or local governments. In order that a local government may exercise
police power, there must be a legislative grant which necessarily sets the limits for the exercise of the power. In this
case, Congress has enacted the Local Government Code which provides the standards as well as the limitations in
the exercise of the police power by the local government unit.

Section 2 of the Local Government Code provides for a system of decentralization whereby local government units are
given more powers, authority, responsibilities and resources, and the process shall proceed from the national government
to the local government units. However, under Sec. 3, par. (i), of the Local Government Code, the operative principles of
decentralization upon the environment and natural resources are not absolute when it is provided therein that "local
government units shall share with the national government the responsibility in the management and maintenance of
ecological balance within their territorial jurisdiction, subject to the provisions of this Code and national policies."

The national policies are embodied in existing laws, rules and regulations pertaining to environment and natural
resources, such as P.D. Nos. 704 and 1219 relating to fishery resources. The above provision was crafted to make sure that
local government enactments do not supplant or negate national government policies on environment. This is precisely the
reason why the Local Government Code did not repeal Sec. 4 of P.D. No. 704 requiring prior submission to and approval
by the Secretary of Agriculture of ordinances relative to fishery and aquatic resources. Needless to stress, the approval of
the Secretary is necessary in order to ensure that these ordinances are in accordance with the laws on fisheries and
national policies. Likewise, the jurisdiction of the Secretary of Environment and Natural Resources over coral resources
under P.D. No. 1219 remains.

The core of the devolution adopted by the Local Government Code is found in Sec. 17 thereof which reiterates the basic
services and facilities to be rendered by the local governments. With respect to the protection and conservation of
fisheries. The power devolved upon the municipality under the Local Government Code is the enforcement of existing
fishery laws of the State and not the enactment thereof. While a local government unit may adopt ordinances upon
subjects covered by law or statute, such ordinances should be in accordance with and not repugnant to the law.

The questioned ordinances may also be struck down for being not only a prohibitory legislation but also an
unauthorized exercise of delegation of powers. An objective, however worthy or desirable it may be, such as the
protection and conservation of our fisheries in this case, can be attained by a measure that does not encompass too wide a
field. The purpose can be achieved by reasonable restrictions rather than by absolute prohibition. Local governments are
not possessed with prohibitory powers but only regulatory powers under the general welfare clause . They cannot therefore
exceed the powers granted to them by the Code by altogether prohibiting fishing and selling for five (5) years all live
fishes. These prohibitions are tantamount to the establishment of a closed season for fish and aquatic resources which
authority is not among those powers vested by the Local Government Code to the LGUs, such authority to establish a
closed season for fisheries is vested upon the Secretary of Agriculture by virtue of P.D. Nos. 704 and 1015 and in the
Secretary of Environment and Natural resources pursuant to P.D. No. 1219 in relation to coral resources. The power of the
local governments is confined and limited to ensuring that these national fishery laws are implemented and enforced
within their territorial jurisdictions. Hence, any memorandum of agreement which might have been executed by the
DA or DENR granting additional powers and functions to the local governments which are not vested upon the latter
by the LGC because such powers are covered by existing statutes, is an undue delegation of power and,
consequently, null and void.
Finally, I find unreasonable Resolution No. 2-93 of Palawan and Ordinance No. 15-92 of Puerto Princesa City. The
prohibitions set forth are not germane to the accomplishment of their goals:
o Ordinance No. 15-92 is aimed to free effectively the marine resources of Puerto Princesa from cyanide and other
obnoxious substances but the means to achieve this objective borders on the excessive and irrational, for the
edict would absolutely ban the shipment of live fishes and lobsters out of the city for a period of five (5) years
without prohibiting cyanide fishing itself which is professed goal of the ordinance.
o The purpose of Resolution No. 2-93 is to protect and preserve all marine coral-dwelling organisms from
devastation and destruction by illegal fishing activities, e.g., dynamite fishing, sodium cyanide fishing, and the
use of other obnoxious substances. But in absolutely prohibiting the catching, gathering, buying and
shipment of live fishes and marine coral resources by any means including those lawfully executed or
done in the pursuit of legitimate occupation, the ordinance overstepped the reasonable limits and
boundaries of its raison d’etre.

This I cannot help viewing as plain arbitrariness masquerading as police power. For the consequent deprivation
of the main source of livelihood of the people of Palawan can only be regarded as utter depravation of this
awesome power of the State. For all the foregoing, I vote to grant the petition.