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REPUBLIC OF THE PHILIPPINES. DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT A. Francisco Gold Condominium II EDSA Cor. Mapagmahal St., Diliman Quezon City LEGAL SERVICE MAYOR LUISITO E. MARTY DILG Legal Opinion No. 69 s. 2011. Office of the Mayor Municipality of Sta. Cruz OCT 24 201 Province of Zambales Dear Mayor Marty: This pertains to your 8 August 2011 letter seeking this Department's opinion on the power of municipal governments to establish fish ports, specifically on the following matters, to wit: 1, What powers does the municipal government have in the establishment or setting up of infrastructure projects particularly a Municipal Fish and Trading Port within the framework of the local autonomy? 2, Does it include the power to determine the location of such fish port taking into consideration its feasibility or viability and such other factors? 3. May such power of the municipal government to establish or set up infrastructure projects which is for public purpose be overridden by private interests? 4 May a Municipal Fish and Trading Port co-exist with a private mining port without compromising the purposes for which they are devoted and encroaching the locations, where they are to be located? 5. If Ln Archipelago enters and takes over the location where the Municipal Fish and Trading Port is allotted is there a sufficient ground for the filing of cases against the officers of said company and other responsible persons who connived and Participated thereto taking into account the fact that its Special Permit to Operate was fraudulently issued. In conjunction with the preceding query, may I order the municipal police and ask for help and back-up from the provincial and regional police to arrest those from Lat Archipelago, its representatives and laborers if they enter and take over the location where the Municipal Fish and Trading Port is allotted considering that It does not have clearances and endorsement from the municipality and barangay? Before responding to your queries, we have noted the following facts based on your representation and documents before us, to wit > That fishermen groups and independent fishermen in your municipality had clamored for the establishment of a strategic site-landing point where their catch can be stored, processed and shipped to the markets in Zambales and abroad; > That pursuant to said clamor, the Sangguniang Bayan (SB) of Sta. Cruz, Zambales proposed the establishment of a fish and trading port in Barangay Longos identified through SB Resolution No. 10-110 series of 2010, as amended by SB Resolution No. 11-44, Series of 2011 which was further reviewed and clarified by the Sangguniang Panlalawigan through Resolution No. 2010-218; > That Lnl Archipelago, a private mining firm, was granted by the concerned office of the PPA a special permit to operate as its loading port the same location where the fish port is to be established. Thus, the PPA recommended that the fish port be transferred to another location; Peezels > On 29 July 2011, PPA Port Manager Silverio D. Mangaoang Jr. requested your Honor to provide information on LGU’s conflicting position/stand/explanation on the following observations: 1. That the proposed fish and trading port are directly fronting private ports of DMCI, A3 Una Mining Corp., Lat Archipelago (all of which are holding valid Special Permit to Operate) and Shangfil Mining and Trading Corp. (which has_a pending application with PPA for clearance to develop). This would make it difficult for PPA to renew/process their permits when they expire by December 2011 and might lead to termination of their respective operations unless said LGU projects are located to another site; 2. The sites of the fish and trading port have invariably changed/transferred no more than three (3) times; and 3. The private ports similarly situated were not all given Mayor's permit/Clearance or No Objection. Per PPA’s record, only OMCI, A3 Una and Shangfil were able to secure the LGU clearance. We shall answer your queries in seriatim. ‘Anent your 1 query, please note that consistent with the general welfare clause found under Section 16 of the Local Government Code (LGC) and the devolved basic services and facilities to municipalities specifically found under Section 17 (b) (2) (vili) of the LGC, municipalities are empowered to provide infrastructure facilities intended to primarily service the needs of the residents. Hence for this purpose, fish ports, among other facilities, may be established by municipalities. This power is without prejudice to the authority of the Philippine Ports Authority (PPA)? to formulate a comprehensive port development plan and prescribe rules and regulations, procedures, and guidelines governing the establishment, construction, maintenance, and operation of all other ports, including private ports in the country. This include the power to license, control, regulate, and supervise any construction or structure within any Port District as embodied under PD 857, otherwise known as the “Revised Charter of the Philippine Ports Authority”. Anent your 2” query, logic dictates that the power of a local government unit to set up and establish a fish port within its territorial jurisdiction necessarily includes the power to determine the location thereof. Furthermore, Section 16 of RA 8550, otherwise known as the “The Philippine Fisheries Code of 1998,” provides that municipal/city government shall have jurisdiction over municipal waters and it shall, in consultation with the Fisheries and Aquatic Resources Management Council (FARMC), be responsible for the management, conservation, development, protection, utilization, and disposition of all fish and fishery/aquatic resources within their respective municipal waters. Thus, the power of the local government unit (LGU) to establish a fish port is inclusive of the power to determine the port's location, provided that it is within its territorial jurisdiction and subject to such limitations imposed by other laws. ‘Anent your 3° query, we regret to inform you that we cannot render an opinion thereon so as to avert any misinterpretation as the query posed is bereft of the necessary factual information, Anent your 4" query, please be informed that the PPA Ports System may be classified as follows: PPA ports consisting of public and private ports; ports under the authority of independent port authorities (IPA); devolved public ports to local government units, including fish ports and wharves; and the Road Roll-on Roll-Off Terminal System (RRTS). We are of the view that a municipal port cannot co-exist in the same location with another type of port. Anent your 5" query, we regret to inform you that we cannot render a categorical opinion thereon as it requires the determination of the liability of LnL Archipelago on the basis of the alleged facts, and in so doing it requires the adjudication of rights of the parties to the "The PPA wa GOCC crested by virtue ot PD 50, as acd by PDT. is an atached agency oti Deparment of Transportation ané Communication (@orG). Page 304 controversy. In view thereof, it is imperative that the Department refrain from rendering an opinion thereon. Anent your 6"* query, it must be noted that jurisdiction over city/municipal waters is vested in municipal/city governments pursuant to Section 16 of RA 8550. In addition, cities and municipalities have the power and responsibility to manage, conserve, develop, protect, utilize and dispose of all fish and fishery/aquatic resources over its city/municipal waters through the enactment and enforcement of ordinances pursuant to Sections 16, 17 and 18 of the LGC. In general, LGUs’ are granted police power within its territorial jurisdiction pursuant to Section 16 of the LGC. However, the exercise thereof is subject to certain limitations such as the due process clause and its non-contravention of the constitution and the laws, among others. Notably, based on the 29 July 2011 communication of PPA Port Manager Silverio D. Mangacang Jr, it is stated therein that from among the four (4) entities holding a special Permit to operate from the PPA, only Lnl Archipelago was not given a Mayor's permit/clearance despite the fact that all 4 private ports are directly fronting the proposed municipal fish and trading port. In such case, the non-issuance of the necessary Permits/clearances was brought about by the LGU’s act of withholding said permits/clearances. In the case Roble Arrastre, Inc. vs. Hon. Altagracia Villaflor, et al. (G.R. No. 128509, 22 August 2006), the Supreme Court held that the limits of the power of the municipal mayor to issue licenses, and permits and suspend or revoke the same should be pursuant to a law or an ordinance. Otherwise stated, a law or an ordinance can provide the conditions upon which the power of the municipal mayor under Section 444(b)(3)(iv) can be exercised. Section 444(b)(3)(iv) of the Local Government Code of 1991 takes its cue from Section 16 thereof, which is largely an exercise of delegated police power, viz.: "SEC, 444. The Chief Executive: Powers, Duties, Functions and Compensation, {b) For eficient, effective and economical governance the purpose of which isthe general welfare of tne municipally ands inhabitans pusuant To Section Ié af this Code, the Municipal mayor shal {3) Intlote and maximize the generation of resources and revenues, and apply the some to the Implementation ‘of development plans, program objectives and praties as provided for under Seclion 18 of this Code, paticuarly these resources and revenues progarmed for agro-indusi evelopment and country-wide growth and progress, and relative thereto, shal |i) Isue lconses and perils and suspend or revoke the same for any violation of the conditions ‘Ubon which sald icenses or permis had been issued, pursuant o low or orainance.{lalics supped } ‘As Section 444(b](3}()s0 slates, the power of the municipal mayor to issue icenses is pusuant to Section 16 ofthe Local Government Code of 1991, which declares SEC. 16. General Welfare. - Every local government unit shall exercise the powers expressly granted, ihose necessary implied therettom, os wel as powers necessary, appropriate, oF incidental for ils effcient and effective governance, and those which are essential fo the promotion of the general weltore. Within their respective lerioial [urscictons, local government units shal ensure and. upport, omong other things. he preservation and enrichment of cullue, promote health and safety ‘enhance the right of the peop To a balanced ecology, encourage and suppor Ihe development ‘of opproptiaie and seltreion! scientific ond technotogicat capabies, improve public morals, enhance economic prosperily and social justice, promote ful employment among thei resents, maintain peace and order. ond preserve the comiort and convenience of thei inhabitants Section 16, known as the general welfare clouse, encapsuiates he delegated police power to local governments. Local government units exercise police power through heir vespactive legislative bodies Evidentiy, the Local Goverment Code of 1991 Is unequivocal that the municipal mavor hos the power to issue licenses ond permits ond suspend ox revoke the some for any violation of the sondiionsupon_whichsaid__icenses or peimils nad been Ived. punvant to law or ‘rdingnce: (Emphass, ous)” Page dota Considering the factual gaps in the narration, the Department is constrained from rendering an opinion as to the propriety of the municipality's exercise of police power as in this instance. We hope to have enlightened you on the matter. Very truly yours, Di Mar poston é DoQuE Iv

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