G.R. No. L-32166. October 18, 1977
THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLANT, VS. HON. MAXIMO A. MACEREN, CFI, STA. CRUZ, LAGUNA, JOSE BUENAVENTURA, GODOFREDO REYES, BENJAMIN REYES, NAZARIO AQUINO AND CA…
AQUINO, J.:
This is a case involving the validity of a 1967 regulation,
penalizing electro fishing in fresh water fisheries, promulgated by the
Secretary of Agriculture and Natural Resources and the Commissioner of Fisheries
under the old Fisheries Law and the law creating the Fisheries Commission.
On March 7, 1969 Jose Buenaventura, Godofredo Reyes, Benjamin
Reyes, Nazario Aquino and Carlito del Rosario were charged by a Constabulary
investigator in the municipal court of Sta. Cruz, Laguna with having violated
Fisheries Administrative Order No. 84-1.
It was alleged in the complaint that the five accused in the
morning of March 1, 1969 resorted to electro fishing in the waters of Barrio
San Pablo Norte, Sta. Cruz by “using their own motor banca, equipped with
motor; with a generator colored green with attached dynamo colored gray or
somewhat white; and electrocuting device locally known as ‘senso’ with a
somewhat webbed copper wire on the tip or other end of a bamboo pole with
electric wire attachment which was attached to the dynamo direct and with the
use of these devices or equipments catches fish thru electric current, which
destroy any aquatic animals within its current reach, to the detriment and
prejudice of the populace” (Criminal Case No. 5429).
Upon motion of the accused, the municipal court quashed the
complaint. The prosecution
appealed. The Court of First Instance of
Laguna affirmed the order of dismissal (Civil Case No. SC-36). The case is now before this Court on appeal
by the prosecution under Republic Act No. 5440.
The lower court held that electro fishing cannot be penalized
because electric current is not an obnoxious or poisonous substance as
contemplated in section 11 of the Fisheries Law and that it is not a substance
at all but a form of energy conducted or transmitted by substances. The lower court further held that, since the
law does not clearly prohibit electro fishing, the executive and judicial
departments cannot consider it unlawful.
As legal background, it should be stated that section 11 of the
Fisheries Law prohibits “the use of any obnoxious or poisonous
substance” in fishing.
Section 76 of the same law punishes any person who uses an
obnoxious or poisonous substance in fishing with a fine of not less than five
hundred pesos nor more than five thousand, and by imprisonment for not
less than six months nor more than five years.
It is noteworthy that the Fisheries Law does not expressly
punish “electro fishing”.
Notwithstanding the silence of the law, the Secretary of Agriculture and
Natural Resources, upon the recommendation of the Commissioner of Fisheries,
promulgated Fisheries Administrative Order No. 84 (62 O. G. 1224), prohibiting
electro fishing in all Philippine waters. The order is quoted below:
“SUBJECT: PROHIBITING ELECTRO FISHING IN ALL WATERS OF
THE PHILIPPINES.
“Pursuant to Section 4 of Act No. 4003, as amended, and
Section 4(h) of R.A. No. 3512, the following rules and regulations regarding the prohibition of electro fishing in
all waters of the Philippines are hereby promulgated for the information and
guidance of all concerned.
“SECTION 1. – Definition. – Words and terms used in this Order shall be
construed as follows:
“(a) ‘Philippine waters or territorial waters of
the Philippines’ includes all waters of the Philippine Archipelago, as defined
in the treaties between the United States and Spain, dated respectively the
tenth of December, eighteen hundred ninety eight and the seventh of November,
nineteen hundred. For the purpose of
this order, rivers, lakes and other bodies of fresh waters are included.
“(b) Electro fishing. – Electro Fishing is the catching of fish
with the use of electric current. The
equipment used are of many electrical devices which may be battery or
generator-operated and from any available source of electric current.
“(c) ‘Persons’ includes firm, corporation,
association, agent or employee.
“(d) ‘Fish’ includes other aquatic products.
“SEC. 2. – Prohibition. – It shall be unlawful for any person to
engage in electro fishing or to catch fish by the use of electric current in any
portion of the Philippine waters except for research, educational and
scientific purposes which must be covered by a permit issued by the Secretary
of Agriculture and Natural Resources which shall be carried at all times.
“SEC. 3. – Penalty. – Any violation of the provisions of this
Administrative Order shall subject the offender to a fine of not exceeding
five hunred pesos (P500.00) or imprisonment of not exceeding six (6) months
or both at the discretion of the Court.
“SEC. 4. – Repealing
Provisions. – All administrative
orders or parts thereof inconsistent with the provisions of this Administrative
Order are hereby revoked.
“SEC. 5. – Effectivity. – This Administrative Order shall take
effect sixty (60) days after its publication in the Official Gazette.”
On June 28, 1967 the Secretary of Agriculture and Natural
Resources, upon the recommendation of the Fisheries Commission, issued
Fisheries Administrative Order No. 84-1, amending section 2 of Administrative
Order No. 84, by restricting the ban against electro fishing to fresh water
fisheries (63 O. G. 9963).
Thus, the phrase “in any portion of the Philippine
waters”, found in section 2, was changed by the amendatory order to read
as follows: “in fresh water
fisheries in the Philippines, such as rivers, lakes, swamps, dams,
irrigation canals and other bodies of fresh water”.
The Court of First Instance and the prosecution (p. 11 of brief) assumed
that electro fishing is punishable under section 83 of the Fisheries Law (not
under section 76 thereof), which provides that any other violation of that law
“or of any rules and regulations promulgated thereunder shall subject the
offender to a fine of not more than two hundred pesos (P200), or imprisonment
for not more than six months, or both, in the discretion of the court”.
That assumption is incorrect because section 3 of the aforequoted
Administrative Order No. 84 imposes a fine of not exceeding P500 on a
person engaged in electro fishing, which amount exceeds the maximum fine
of P200 fixed in section 83. It seems that the Department Secretary and
the Commissioner of Fisheries prescribed their own penalty for electro fishing,
which penalty is less than the severe penalty imposed in section 76 and which
is not identical to the light penalty imposed in section 83.
Had Administrative Order
No. 84 adopted the lighter penalty prescribed in section 83, then the crime of
electro fishing would be within the exclusive original jurisdiction of
the inferior court (Sec. 44[f], Judiciary Law; People vs. Ragasi, L-28663,
September 22, 1976, 73 SCRA 23).
We have discussed this
preliminary point, not raised in the briefs, because it is obvious that the
crime of electro fishing, which is punishable with a fine up to P500, falls
within the concurrent original jurisdiction of the inferior courts and
the Court of First Instance (People vs. Nazareno, L-40037, April 30, 1976, 70
SCRA 531 and the cases cited therein).
And since the instant case was filed in the municipal court of
Sta. Cruz, Laguna, a provincial capital, the order of dismissal rendered by
that municipal court was directly appealable to this Court, not to the Court of
First Instance of Laguna (Sec. 45 and last par. of section 87 of the Judiciary
Law; Esperat vs. Avila, L-25922, June 30, 1967, 20 SCRA 596).
It results that the Court of First Instance of Laguna had no
appellate jurisdiction over the case.
Its order affirming the municipal court’s order of dismissal is void
for lack of jurisdiction. This appeal
shall be treated as a direct appeal from the municipal court to this Court (See
People vs. Del Rosario, 97 Phil. 67).
In this appeal, the prosecution argues that Administrative
Orders Nos. 84 and 84-1 were not issued under section 11 of the Fisheries Law which, as indicated above, punishes
fishing by means of an obnoxious or poisonous substance. This contention is not well-taken because, as
already stated, the penal provision of Administrative Order No. 84 implies that
electro fishing is penalized as a form of fishing by means of an obnoxious or
poisonous substance under section 11.
The prosecution cites as
the legal sanctions for the prohibition against electro fishing in fresh water
fisheries (1) the rule-making power of the Department Secretary under section 4
of the Fisheries Law; (2) the function of the Commissioner of Fisheries to
enforce the provisions of the Fisheries Law and the regulations promulgated
thereunder and to execute the rules and regulations consistent with the purpose
for the creation of the Fisheries Commission and for the development of
fisheries (Sec. 4[c] and [h], Republic Act No. 3512; (3) the declared national
policy to encourage, promote and conserve our fishing resources (Sec. 1,
Republic Act No. 3512), and (4) section 83 of the Fisheries Law which provides
that “any other violation of” the Fisheries Law or of any rules and
regulations promulgated thereunder “shall subject the offender to a fine
of not more than two hundred pesos, or imprisonment for not more than six
months, or both, in the discretion of the court”.
As already pointed out
above, the prosecution’s reference to section 83 is out of place because the
penalty for electro fishing under Administrative Order No. 84 is not the same
as the penalty fixed in section 83.
We are of the opinion
that the Secretary of Agriculture and Natural Resources and the Commissioner of
Fisheries exceeded their authority in issuing Fisheries Administrative Orders
Nos. 84 and 84-1 and that those orders are not warranted under the Fisheries
Law, Act No. 4003, and under the law creating the Fisheries Commission,
Republic Act No. 3512.
The reason is that the
Fisheries Law does not expressly prohibit electro fishing. As electro fishing is not banned under that
law, the Secretary of Agriculture and Natural Resources and the Commissioner of
Fisheries are powerless to penalize it.
In other words, Administrative Orders Nos. 84 and 84-1, in penalizing
electro fishing, are devoid of any legal basis.
Had the lawmaking body intended to punish electro fishing, a
penal provision to that effect could have been easily embodied in the old
Fisheries Law.
That law punishes (1) the use of obnoxious or poisonous
substance, or explosives in fishing; (2) unlawful fishing in deep-sea
fisheries; (3) unlawful taking of marine mollusca, (4) illegal taking of
sponges; (5) failure of licensed fishermen to report the kind and quantity of
fish caught, and (6) other violations.
Nowhere in that law is electro fishing specifically
punished. Administrative Order No. 84,
in punishing electro fishing, does not contemplate that such an offense falls
within the category of “other violations” because, as already shown,
the penalty for electro fishing is the penalty next lower to the penalty for
fishing with the use of obnoxious or poisonous substances, fixed in section 76,
and is not the same as the penalty for “other violations” of the law
and regulations fixed in section 83 of the Fisheries Law.
The lawmaking body cannot delegate to an executive official the
power to declare what acts should constitute a criminal offense. It can authorize the issuance of regulations
and the imposition of the penalty provided for in the law itself. (People vs. Exconde, 101 Phil. 1125, citing
11 Am. Jur. 965 on p. 1132).
Originally, Administrative Order No. 84 punished electro fishing
in all waters. Later, the ban
against electro fishing was confined to fresh water fisheries. The amendment created the impression that
electro fishing is not condemnable per se. It could be tolerated in marine waters. That circumstance strengthens the view that
the old law does not eschew all forms of electro fishing.
However, at present, there is no more doubt that electro fishing
is punishable under the Fisheries Law and that it cannot be penalized merely by
executive regulation because Presidential Decree No. 704, which is a revision
and consolidation of all laws and decrees affecting fishing and fisheries and
which was promulgated on May 16, 1975 (71 O. G. 4269), expressly punishes
electro fishing in fresh water and salt water areas.
That decree provides:
“SEC. 33. – Illegal
fishing, dealing in illegally caught
fish or fishery/aquatic products. –
It shall be unlawful for any person to catch, take or gather or cause to be
caught, taken or gathered fish or fishery/aquatic products in Philippine waters
with the use of explosives, obnoxious or poisonous substance, or by the use of
electricity as defined in paragraphs (1), (m) and (d), respectively, of Section
3 hereof: x x x.”
The decree repealed Act No. 4003, as amended, Republic Acts Nos.
428, 3048, 3512 and 3586, Presidential Decrees Nos. 43, 534 and 553, and all
Decrees, Acts, Executive Orders, rules and regulations or parts thereof
inconsistent with it (Sec. 49, P. D. No. 704).
The inclusion in that decree of provisions defining and
penalizing electro fishing is a clear recognition of the deficiency or silence
on that point of the old Fisheries Law.
It is an admission that a mere executive regulation is not legally
adequate to penalize electro fishing.
Note that the definition of electro fishing, which is found in
section 1(c) of Fisheries Administrative Order No. 84 and which is not provided
for in the old Fisheries Law, is now found in section 3(d) of the decree. Note further that the decree penalizes
electro fishing by “imprisonment from two (2) to four (4) years”, a
punishment which is more severe than the penalty of a fine of not exceeding
P500 or imprisonment of not more than six months or both fixed in section 3 of
Fisheries Administrative Order No. 84.
An examination of the rule-making power of executive officials
and administrative agencies and, in particular, of the Secretary of Agriculture
and Natural Resources (now Secretary of Natural Resources) under the Fisheries
Law sustains the view that he exceeded his authority in penalizing electro
fishing by means of an administrative order.
Administrative agencies are clothed with rule-making powers
because the lawmaking body finds it impracticable, if not impossible, to
anticipate and provide for the multifarious and complex situations that may be
encountered in enforcing the law. All
that is required is that the regulation should be germane to the objects and
purposes of the law and that it should conform to the standards that the law
prescribes (People vs. Exconde, 101 Phil. 1125; Director of Forestry vs. Muñoz,
L-24796, June 28, 1968, 23 SCRA 1183, 1198; Geukeko vs. Araneta, 102 Phil. 706,
712).
The lawmaking body cannot possibly provide for all the details in
the enforcement of a particular statute (U. S. vs. Tupasi Molina, 29 Phil. 119,
125, citing U. S. vs. Grimaud, 220 U. S. 506; Interprovincial Autobus Co., Inc.
vs. Coll. of Internal Revenue, 98 Phil. 290, 295-6).
The grant of the rule-making power to administrative agencies is
a relaxation of the principle of separation of powers and is an exception to
the nondelegation of legislative powers.
Administrative regulations or “subordinate legislation” calculated
to promote the public interest are necessary because of “the growing
complexity of modern life, the multiplication of the subjects of governmental
regulations, and the increased difficulty of administering the law”
(Calalang vs. Williams, 70 Phil. 726; People vs. Rosenthal and Osmeña, 68 Phil.
328).
Administrative regulations adopted under legislative authority by
a particular department must be in harmony with the provisions of the law, and
should be for the sole purpose of carrying into effect its general provisions. By such regulations, of course, the law
itself cannot be extended. (U. S. vs.
Tupasi Molina, supra). An
administrative agency cannot amend an act of Congress (Santos vs. Estenzo, 109
Phil. 419, 422; Teoxon vs. Members of the Board of Administrators, L-25619,
June 30, 1970, 33 SCRA 585; Manuel vs. General Auditing Office, L-28952,
December 29, 1971, 42 SCRA 660; Deluao vs. Casteel, L-21906, August 29, 1969,
29 SCRA 350).
The rule-making power must be confined to details for regulating
the mode or proceeding to carry into effect the law as it has been
enacted. The power cannot be extended to
amending or expanding the statutory requirements or to embrace matters not
covered by the statute. Rules that
subvert the statute cannot be sanctioned.
(University of Santo Tomas vs. Board of Tax Appeals, 93 Phil. 376, 382,
citing 12 C. J. 845-46. As to invalid
regulations, see Collector of Internal Revenue vs. Villaflor, 69 Phil. 319;
Wise & Co. vs. Meer, 78 Phil. 655, 676; Del Mar vs. Phil. Veterans
Administration, L-27299, June 27, 1973, 51 SCRA 340, 349).
There is no question that the Secretary of Agriculture and
Natural Resources has rule-making powers.
Section 4 of the Fisheries Law provides that the Secretary “shall
from time to time issue instructions, orders, and regulations consistent”
with that law, “as may be necessary and proper to carry into effect the
provisions thereof”. That power is
now vested in the Secretary of Natural Resources by section 7 of the Revised Fisheries
Law, Presidential Decree No. 704.
Section 4(h) of Republic Act No. 3512 empowers the Commissioner
of Fisheries “to prepare and execute upon the approval of the Secretary of
Agriculture and Natural Resources, forms, instructions, rules and regulations
consistent with the purpose” of that enactment “and for the
development of fisheries”.
Section 79(B) of the
Revised Administrative Code provides that “the Department Head shall have
the power to promulgate, whenever he may see fit to do so, all rules,
regulations, orders, circulars, memorandums, and other instructions, not
contrary to law, necessary to regulate the proper working and harmonious and
efficient administration of each and all of the offices and dependencies of his
Department, and for the strict enforcement and proper execution of the laws
relative to matters under the jurisdiction of said Department; but none of said
rules or orders shall prescribe penalties for the violation thereof, except as
expressly authorized by law.”
Administrative regulations issued by a Department Head in conformity
with law have the force of law (Valerio vs. Secretary of Agriculture and
Natural Resources, 117 Phil. 729, 733; Antique Sawmills, Inc. vs. Zayco,
L-20051, May 30, 1966, 17 SCRA 316). As
he exercises the rule-making power by
delegation of the lawmaking body, it is a requisite that he should not transcend
the bounds demarcated by the statute for the exercise of that power; otherwise,
he would be improperly exercising legislative power in his own right and not as
a surrogate of the lawmaking body.
Article 7 of the Civil Code embodies the basic principle that
“administrative or executive acts, orders and regulations shall be valid
only when they are not contrary to the laws or the Constitution”.
As noted by Justice Fernando, “except for constitutional
officials who can trace their competence to act to the fundamental law itself,
a public official must locate in the statute relied upon a grant of power
before he can exercise it.” “Department zeal may not be permitted to outrun the
authority conferred by statute.” (Radio Communications of the Philippines,
Inc. vs. Santiago, L-29236, August 21, 1974, 58 SCRA 493, 496-8).
“Rules and regulations when promulgated in pursuance of the
procedure or authority conferred upon the administrative agency by law, partake
of the nature of a statute, and compliance therewith may be enforced by a penal
sanction provided in the law. This is so
because statutes are usually couched in general terms, after expressing the
policy, purposes, objectives, remedies and sanctions intended by the
legislature. The details and the manner
of carrying out the law are oftentimes left to the administrative agency
entrusted with its enforcement. In this
sense, it has been said that rules and regulations are the product of a
delegated power to create new or additional legal provisions that have the
effect of law.” The rule or regulation should be within the scope of the
statutory authority granted by the legislature to the administrative
agency. (Davis, Administrative Law, p.
194, 197, cited in Victorias Milling Co., Inc. vs. Social Security Commission,
114 Phil. 555, 558).
In case of discrepancy between the basic law and a rule or
regulation issued to implement said law, the basic law prevails because said
rule or regulation cannot go beyond the terms and provisions of the basic law
(People vs. Lim, 108 Phil. 1091).
This Court in its decision in the Lim case, supra, promulgated
on July 26, 1960, called the attention of technical men in the executive
departments, who draft rules and regulations, to the importance and necessity
of closely following the legal provisions which they intend to implement so as
to avoid any possible misunderstanding or confusion.
The rule is that the violation of a regulation prescribed by an
executive officer of the government in conformity with and based upon a statute
authorizing such regulation constitutes an offense and renders the offender
liable to punishment in accordance with the provisions of the law (U. S. vs.
Tupasi Molina, 29 Phil. 119, 124).
In other words, a violation or infringement of a rule or
regulation validly issued can constitute a crime punishable as provided in the
authorizing statute and by virtue of the latter (People vs. Exconde, 101 Phil.
1125, 1132).
It has been held that “to declare what shall constitute a
crime and how it shall be punished is a power vested exclusively in the legislature, and it may not be
delegated to any other body or agency” (1 Am. Jur. 2nd, sec. 127, p. 938;
Texas Co. vs. Montgomery, 73 F. Supp. 527).
In the instant case the regulation penalizing electro fishing is
not strictly in accordance with the Fisheries Law, under which the regulation
was issued, because the law itself does not expressly punish electro
fishing.
The instant case is similar to People vs. Santos, 63 Phil.
300. The Santos case involves
section 28 of Fish and Game Administrative Order No. 2 issued by the Secretary
of Agriculture and Natural Resources pursuant to the aforementioned section 4
of the Fisheries Law.
Section 28 contains the proviso that a fishing boat not licensed
under the Fisheries Law and under the said administrative order may fish
within three kilometers of the shoreline of islands and reservations over which
jurisdiction is exercised by naval and military reservations authorities of the
United States only upon receiving written permission therefor, which permission
may be granted by the Secretary upon recommendation of the military or naval
authorities concerned. A violation of
the proviso may be proceeded against under section 45 of the Federal Penal
Code.
Augusto A. Santos was prosecuted under that provision in the
Court of First Instance of Cavite for having caused his two fishing boats to
fish, loiter and anchor without permission from the Secretary within three
kilometers from the shoreline of Corregidor Island.
This Court held that the Fisheries Law does not prohibit boats
not subject to license from fishing within three kilometers of the shoreline of
islands and reservations over which jurisdiction is exercised by naval and
military authorities of the United States, without permission from the
Secretary of Agriculture and Natural Resources upon recommendation of the military and naval authorities
concerned.
As the said law does not penalize the act mentioned in section 28
of the administrative order, the promulgation of that provision by the
Secretary “is equivalent to legislating on the matter, a power which has
not been and cannot be delegated to him, it being expressly reserved” to
the lawmaking body. “Such an act constitutes not only an excess of the
regulatory power conferred upon the Secretary but also an exercise of a legislative
power which he does not have, and therefore” the said provision “is
null and void and without effect”.
Hence, the charge against Santos was dismissed.
A penal statute is strictly construed. While an administrative agency has the right
to make rules and regulations to carry into effect a law already enacted, that
power should not be confused with the power to enact a criminal statute. An administrative agency can have only the
administrative or policing powers expressly or by necessary implication
conferred upon it (Glustrom vs. State, 206 Ga. 734, 58 SE 2d 534; See 2 Am.
Jur. 2nd 129-130).
Where the legislature has delegated to executive or
administrative officers and boards authority to promulgate rules to carry out
an express legislative purpose, the rules of administrative officers and
boards, which have the effect of extending, or which conflict with the
authority-granting statute, do not represent a valid exercise of the
rule-making power but constitute an attempt by an administrative body to
legislate (State vs. Miles, 5 Wash. 2nd 322; 105 Pac. 2nd 51).
In a prosecution for a violation of an administrative order, it
must clearly appear that the order is one which falls within the scope of the
authority conferred upon the administrative body, and the order will be
scrutinized with especial care (State vs. Miles, supra).
The Miles case involved a statute which authorized
the State Game Commission “to adopt, promulgate, amend and/or repeal, and
enforce reasonable rules and regulations governing and/or prohibiting the taking of the various classes of game”.
Under that statute, the Game Commission promulgated a rule that
“it shall be unlawful to offer, pay or receive any reward, prize or
compensation for the hunting, pursuing, taking, killing or displaying of
any game animal, game bird or game fish or any part thereof”.
Beryl S. Miles, the owner of a sporting goods store, regularly
offered a ten-dollar cash prize to the person displaying the largest
deer in his store during the open season for hunting such game animals. For that act, he was charged with a violation
of the rule promulgated by the State Game Commission.
It was held that there was no statute penalizing the display
of game. What the statute penalized was
the taking of game. If the
lawmaking body desired to prohibit the display of game, it could have readily
said so. It was not lawful for the
administrative board to extend or modify the statute. Hence, the indictment against Miles was
quashed. The Miles case is
similar to this case.
WHEREFORE, the lower court’s decision of June 9, 1970 is
set aside for lack of appellate jurisdiction and the order of dismissal
rendered by the municipal court of Sta. Cruz, Laguna in Criminal Case No. 5429
is affirmed. Costs de oficio.
SO ORDERED.
Barredo, (Acting Chairman), Concepcion, Jr., Santos, and Guerrero,
JJ., concur.
Fernando and Antonio,
JJ., did not take part.