Entrepreneurial Farmer

Ambrosio R. Villorente

Fate of New Washington Fishery Code

The "Revised Municipal Fishery Code of the Municipality of New Washington", Ordinance No. 2010 – 01 has been in the agenda of the Aklan Sangguniang Panlalawigan (SP) since January 19. It is still in the agenda on its session on Wednesday, Feb. 16, number VII A, 6a.

The joint committee on Laws and Environment which met on Monday, February 14 recommended consideration of it "be deferred while awaiting the rejoinder from the fishpond operators".

Negative Reactions

The Code appears to be mutually beneficial to all concerned and of noble intention. However, it is encountering strong objections from the fishpond operators of the municipality of New Washington.

EF is receiving negative reactions from various fishermen in New Washington. Atty. Ronquillo C. Tolentino in text messages informed. "I am receiving some fishermen from New Washington expressing to me the negative effects on their livelihoods if the Code is approved and implemented."

In a position paper, some fishpond operators submitted to Hon. Selwyn C. Ibarreta and Hon. Nemesio P. Neron, they wrote: Article 2 Section 1. Zone 1 – Brackish Water Tributaries and Fishponds refer to the river and bay systems particularly part of Batan Bay Beginning from the imaginary demarcation line dividing the water boundaries between the municipal water of ... Batan and New Washington, including the river system of Lagatik, Pinamuk-an, Mabilo, and Sook Rivers and the Andagao Bay and all streams, brooks, creeks, and fishponds, either developed or underdeveloped, found within the territorial jurisdiction of the municipal waters of the Municipality of New Washington.

The highlighted portion of the said Section failed to define with definite certainty the boundaries of this zone. The uncertainty of the specific metes and bounds would create confusion as to the boundaries of the municipal waters.

The inclusion of "fishpond developed or underdeveloped, found within the territorial jurisdiction of the municipal waters of New Washington" may be considered as a rider to usurp the public lands which is exclusively reserved to the State because it is intended for the development of the national wealth (Article 419(2) new Civil Code of the Philippines). It must be noted that in Republic Act No. 8550 the definition of "Municipal Waters" excludes the protected or reserved areas. This intent was clearly manifested in R.A. No, 8550 and in accordance with Section 2 of the Fisheries Administrative Order No. 197, Series of 2000 dated 23 February 2000.

Another rider in Article 4 Section 1 states, "It shall be likewise unlawful for any person, cooperative, partnership, association or corporation to operate and/or lease fishpond, fish cage, fish corrals or oyster culture beds or take or catch bangus fry of any species for propagation within the jurisdiction of this municipality without first securing a municipal grant conferred thereof by the Sangguniang Bayan as provided for in this Code".

Here, fishponds situated in the municipality of New Washington, Aklan is beyond the province of the said municipality because it belongs to the State thus it is not within its legitimate municipal fishery privileges as defined in Section 149 of R. A. No. 7160.
From the foregoing legal jurisdiction, it can be safely adduced that fishpond areas under fishpond lease agreements issued by Department of Agriculture through the Bureau of Fisheries and Aquatic Resources cannot be declared as part of the municipal waters and the Sangguniang Bayan concern has no authority to grant any fishery concession.

Article 5, Section 4. Fish Ports. "The Sangguniang Bayan shall identify, designate and/or create a municipal fish port where all fishing vessels shall unload their catch or cargo of fish and other aquatic resources for trading purposes. xxx." Here, the word "shall" signified that the New Washington LGU has not coordinated with the fishpond operators/FLA lessees as constituent of the private sector in accordance with Section 59 or R.A. No. 8550. Clearly, the establishment of the post-harvest facility should not be left to the sole discretion of the LGU.

Article 6, Section 2 states "All fishery products produced from fishponds or those fish catch taken within the municipal waters of the municipality including those taken from open seas by fishing vessels registered or having business license to operate in this municipality are strictly required to be unloaded at the designated Municipal Fish Port or Bagsakan Center for auction or trading." The ordinance uses the phrase "are strictly required". This simply means, it is a command to all stakeholders to trade all fishery products at the Bagsakan Center. No "if’s and but’s". This is no longer regulatory power but an act contrary to the declared national economic policy and it constitutes as monopoly and in restrain of trade. This is in violation of our constitution which provides: "The State shall regulate or prohibit private monopolies when the public interest so requires. No combination in restrain of trade or unfair competition shall be allowed."

Further, Section 4 of Article 6 also provides: "There shall be collected entrance fee for fishery products unloaded at the fish port or Bagsakan Center, as follows: 1.) Bangus – Php0.50 per kilo, etc." This provision is simply excessive, confiscatory, and exorbitant imposition of regulatory fees for revenue purposes.

It must be noted that Article 6 is entitled as a Regulatory Provision on Fish Port or Bagsakan Center Auction or Trading of Fish and other Fishery Products, Fees and Charges. Be that as it may, the imposition of entrance fee for fishery products is in defiance of the jurisprudence of the Supreme Court in the case of American Mail Line et. al., vs. City of Basilan, et. al., G.R. No. L-12647. May 31, 1961, which states that "The Power to regulate as an exercise of police power does not include the power to impose fees for revenue purposes (Cu Unjieng s. Patstone, 42 Phil., 818; Pacific Commercial Co. vs. Romualdez etc., et. al., 49 Phil., 917; Hercules Lumber Co. vs. Municipality of Zamboanga, 55 Phil., 653), and for fees to be purely regulatory in nature, the same "must be no more than sufficient to cover the actual cost of inspection or examination as nearly as the same can be estimated." (Manila Electric Co. vs. Auditor General, 73 Phil., 129).

Also, the foregoing arguments will hold true with regards to Article 11, Section 3 which reads "Report of Schedule of Harvest and the Actual Value Harvested per Gross Tonnage. It shall be the duty of every fishpond owner to make regular report to the Fisheries Management and Regulatory Unit and the Office of the Municipal Treasurer of the schedule of harvest and actual value of aquatic products (milkfish or bangus, prawn or sugpo, shrimp or pasayan, tilapia catfish or hito and crabs or alimango) harvested from his fishpond for inspection and regulatory purposes. Provided, that there shall be collected from fishpond owners a regulatory and inspection fees for the harvested aquatic products as follows: Regulatory fee: a) Mayor’s Clearance Fee Php500.00 per harvest. Inspection Fee: a) Milkfish or Bangus Php10.00 per 50 Kg. or fraction thereof, etc.

For an ordinance to be valid, it must not only be within the corporate powers of the municipality to enact but must also be passed according to the procedure prescribed by law, and must be in consonance with certain well established and basic principles of a substantive nature. These principles require that a municipal ordinance must not: (1) contravene the Constitution or any statute, (2) be unfair or oppressive, (3) partial or discriminatory, (4) prohibit but may regulate trade, (5) must be general and consistent with public policy, and (6) be unreasonable.

Here, the questioned ordinance has failed to comply with the foregoing doctrine and non-observance of the following basic principles under R.A. 7160, Sec. 130. Fundamental Principles. The following fundamental principles shall govern the exercise of the taxing and other revenue-raising powers of all local government units:
(a) Taxation shall be uniform;
(b) Taxes, fees, charges and other impositions shall:
(1) be equitable and based as far as practicable on the taxpayer’s ability to pay;
(2) be levied and collected only for public purposes;
(3) not be unjust, excessive, oppressive, or confiscatory;
(4) not be contrary to law, public policy, national economic policy, or in the restraint of trade;
(c) The collection of local taxes, fees, charges and other impositions shall in no case be let to any private person;

(d) The revenue collected pursuant to the provisions of this Code shall inure solely to the benefit of, and be subject to the disposition by, the local government unit levying the tax, fee, charge or other imposition unless otherwise specifically provided herein; and

(e) Each local govern-ment unit shall, as far as practicable, evolve a progressive system of taxation.

The position paper was signed by 15 major fishpond owners/operators who respectfully prayed that the New Washington Ordinance No. 2010-01 Enacting "The Revised Municipal Fishery Code of the Municipality of New Washington, Province of Aklan" be DENIED FOR APPROVAL.

What is the fate of that fishery code? /MP