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quiet battle has been raging over Department of Environment and Natural
Resources (DENR) Administrative Order (DAO) No. 17, Series of 2001, which
prescribes the technical guidelines for the delineation and delimitation
of municipal waters. At the center of the dispute is Section 4(58) of
the Fisheries Code of 1998, which provides:
58. Municipal
waters — include not only streams, lakes, inland bodies of water and tidal
waters within the municipality which are not included within the protected
areas as defined under Republic Act No. 7586 (The NIPAS Law), public forest,
timber lands, forest reserves or fishery reserves, but also marine waters
included between two (2) lines drawn perpendicular to the general coastline
from points where the boundary lines of the municipality touch the sea
at low tide and a third line parallel with the general coastline including
offshore islands and fifteen (15) kilometers from such coastline. Where
two (2) municipalities are so situated on opposite shores that there is
less than thirty(30) kilometers of marine waters between them, the third
line shall be equally distant from opposite shore of the respective municipalities.
The controversy revolves around how the 15-km municipal water limits
should be reckoned, and whether or not the DENR, through the National
Mapping Resource and Information Authority (NAMRIA), has the authority
to issue the technical guidelines. Critics of DENR – mainly a group of
commercial fishing operators under the Alliance of Fishing Federations
– claim that the DAO is illegal, that its use of the archipelagic principle
is inappropriate and not in consonance with the Fisheries Code’s definition
of municipal waters, that it would reduce the country’s fishing grounds,
and worse, that it would cause “massive lay-offs in the fishing industry
nationwide”, and jeopardize the country's food security. They have found
some allies in the House of Representatives, which passed last September
21 through its Committee on Appropriations a “Resolution Declaring the
Existence of Legal Infirmities Affecting DENR A.O. No. 2001-17 and Concern
Over Possible Adverse Effects Resulting from the Implementation Thereof
and Recommending its Revocation.”
What are the facts?
Fact #1: Delineation is required by
law
Under the law, municipal waters are an important part of each of the
country’s over 800 coastal cities and municipalities. On the basis of
these municipal waters, the local government units (LGUs) can generate
revenues from the use of fisheries and aquatic resources, enforce fisheries
and environmental laws, allocate municipal fisheries and aquatic resources
among its residents, and effectively control the waters for the purposes
of fisheries and environmental management.
The concept of municipal waters has been established under Philippine
law since the Americans enacted our first administrative code in 1916.
For some reason, however, the boundaries of these municipal waters have
never been delineated; the elementary and primordial task of defining
the limits of the jurisdiction of local governments over their marine
waters was neglected by so many administrations. This makes DAO 17 the
first instrument in Philippine history that directly addresses the technical
problems of clearly delineating the municipal waters of the country.
More importantly, for the first time, we have in DAO 17 a perfectly harmonized
application of the fundamental legal principles of archipelagic unity,
devolution and decentralization of governance, and adherence to internationally
accepted norms enshrined in our Constitution and existing laws.
Fact #2: DAO 17 is a practical technical
instrument necessary to enforce the law
The definition of municipal waters under Section 4(58) is deficient in
that it provides clear rules for only two types of coastlines: the straight
coastline, and directly opposing coastlines. It does not provide for
the nearly limitless possible configurations and shapes of coastlines
of the 7,107 islands and surrounding waters of the Philippine Archipelago.
The Philippine coastline is highly irregular: curves and indentations
are the rule rather than the exception, and islands and islets dot the
periphery of many provinces and municipalities. In some cases, municipalities
are even made up of two or more islands. The perpendicular lines provided
for by the Fisheries Code will be inapplicable to curving coastlines,
while parallel lines mimicking the shape of the actual coastline will
be impossible to enforce at sea. The stated purpose of reserving municipal
waters for the greater majority of marginal fishers will thus be rendered
useless and futile.
Obviously, without appropriate administrative interpretation, the legal
concept of municipal waters will be inutile and unenforceable. DENR’s
issuance of the technical guidelines contained in DAO 17 is necessary
to conform to the settled rule that the law must be interpreted in a manner
that will give it effect. DAO 17 is not another beautiful but impractical
piece of paper issued by someone who knows the theory but nothing of practice;
instead, it implements the definition of municipal waters in perhaps the
only manner by which it can be implemented.
By adapting rules accepted under international hydrographic and geodetic
methodologies, DAO 17 simplifies complex coastlines as much as possible
in order to provide sufficient basis for implementing the rules under
the Fisheries Code. This is done through the use of three types of baselines
– normal, straight, and archipelagic – to determine the "general"
coastline required for projecting the perpendicular and parallel lines.
Normal baselines are used when the coastline is simple and not deeply
indented, and there are no outlying or fringing islands. Straight baselines
are drawn to simplify deeply indented and irregular coastlines. Municipal
archipelagic baselines are used in the case of those municipalities made
up of two or more islands so that, subject to certain limitations, the
offshore islands can be included in the "general" coastline
that determines the parallel line.
The key ideas here are the terms "general coastline" and "offshore
islands." A "general coastline" has a technical and legally
accepted meaning in international hydrography and geodesy, as well as
the international law on maritime boundaries, which refers to the general
direction of the coast rather than the low water line. The actual shape
of a coastline will vary depending on the different levels of detail that
become visible at different scales of a map. For example, the coastline
of Batangas on a Philippine map with a scale of 1:2,500,000 will look
different on a map with a scale of 1:20,000. A "general coastline"
is therefore a simplified contour that best represents the overall shape
of the coast at whatever scale.
For "offshore islands," the primary consideration must be whether
or not such islands are to be treated in the same manner as any other
land territory of the municipality. If "offshore islands" are
regarded as being on the same level as any other parcel of land in the
municipality, then they should also be deemed to generate their own municipal
waters. Thus, in cases where smaller islands fringe the coast of a larger
island, the smaller islands become starting points for measuring the municipal
waters; and in cases where municipalities are formed by two or more widely
separated islands, each island of the municipality generates its own municipal
waters.
(Click
to picture to enlarge)
Potential 15-kilometer limits of municipal Waters
of the Philippines
(Kalayaan Island Group not drawn due to unavailability of accurate map).
Fact #3: The archipelagic principle
is a fundamental pillar of the Philippine concept of national territory
The guiding principle for resolving the issue about offshore islands
is the archipelagic principle, which is enshrined in Art. 1 of the 1987
Constitution and has been one of the fundamental pillars of the Philippine
concept of national territory. Since the 1950s, the Philippines has pushed
this principle, which led to the so-called "Archipelagic Doctrine"
in international law and has become the legal and political basis for
considering our 7,107 islands as one political unit. The "Archipelagic
Doctrine" is one of our most important contributions to the international
legal system; without it, the widely scattered islands of our archipelago
will be separated by international waters, and the Filipino nation will
be deprived of the large tracts of marine resources between the islands
that it has claimed since its inception.
Central to the archipelagic principle is the concept of equality between
landmasses, where each island regardless of size is treated in the same
manner as all others. Without such equality of treatment, small outlying
islands like Tawi-Tawi and Batanes may be considered as mere territories
not entitled to provincial or municipal status; at most they may be mere
attachments to some province located in one of the 10 major landmasses
of the country. Equally important to the archipelagic principle is the
concept of unity between land and water, where the water forms the link
between the disparate islands. The proper application of the doctrine
demands that, as a national policy, we should treat all of our islands
in the same manner, not allowing some of them to be insignificant as if
they were mere parts of the water, and that we should not allow the waters
to create highly fragmented political units.
Our foreign policy and legal positions before the international community
cannot be inconsistent with our national law and policy. If we were not
to apply the archipelagic principle to the component units of our country
(the LGUs), then we would undermine the most fundamental pillar of our
concept of national territory, and weaken our position in international
law. We might as well allow foreign countries to also treat our outlying
islands as insignificant pockets of land less important than the largest
islands of Luzon, Visayas and Mindanao; and the waters in between as thoroughfares
open to everyone.
In this light, DAO 17 perfectly captures the spirit of and appropriately
applies the archipelagic principle in our national law. It is not the
first time that the principle has been applied, for even the Bureau of
Fisheries and Aquatic Resources as late as in 1999, in an official letter
sent to the DENR during the term of Director Arsenio Camacho, has said
that it has always adhered to the archipelagic principle in its implementation
of the rules under the previous Fisheries Code. Even before that, in 1985,
LOI 1328 had already applied the archipelagic principle as forcefully
as a law.
DAO 17 is a concrete and express manifestation of a fundamental concept
that underlies our entire political system. The fact that the archipelagic
principle is not expressly stated in previous laws is not a bar to its
application, for some of the most essential principles of our laws are
themselves not expressly or lengthily elaborated upon, such as the principles
of separation of powers, separation of Church and State, civilian supremacy
over the military, sovereign immunity, and the like.
Fact #4: DAO 17 promotes local autonomy
In applying the archipelagic principle, DAO 17 also directly implements
and enhances the policy of local autonomy, decentralization, and devolution
of powers to local governments. The Constitutional edict for promoting
and enhancing local autonomy can only be achieved by ensuring that the
LGUs are permitted to exercise the full breadth of their powers under
the law. By providing for simplified boundaries in the interest of ensuring
the enforceability of laws within the municipal jurisdiction, DAO 17 allows
the LGUs to undertake their mandated responsibilities within a clearly
defined jurisdictional area. By applying the archipelagic principle,
recognizing that two or more islands of the same local government must
be treated equally, and linking discrete islands through their municipal
waters, DAO 17 ensures that the LGUs’ jurisdiction can be exercised effectively
and equitably throughout their local territories, not only in small pockets.
In terms of procedure, instead of simply imposing the national government's
own ideas, DAO 17 requires the LGUs to take the initiative in defining
their own municipal waters by requesting for technical delineation using
publicly-available procedures, subjecting the technical delineation to
local consultation and discussions, allowing flexibility for negotiations
and adjustments between LGUs with overlapping waters, and ensuring adoption
of the final boundaries by the LGUs through their own local ordinance.
In this manner, what would be a purely technical exercise by a NAMRIA
employee sitting in his desk, becomes a truly participatory process by
which the LGU and their constituencies, who are most directly affected
by the delineation, have a direct hand in the definition of the boundaries
to which they are entitled by law.
Maps showing municipal water
boundaries posted for review by concerned LGUs in the Province of Masbate:
The boundaries were drawn on maps by LGU representatives in a workshop
under NAMRIA supervision. (A.Sia, 2000)
By ensuring that the process is fully participatory, and in fact, by
requiring the local governments themselves to initiate the delineation
process and then use their own powers through the declaration of their
boundaries in a municipal ordinance, DAO 17 recognizes the primacy of
local policy and legislation in matters of local jurisdiction. More importantly,
the delineation of municipal waters under DAO 17 ensures that the LGUs
are able to manage clearly defined areas of municipal waters, enact effective
conservation and management measures, impose revenue measures and regulations,
and exercise enforcement and control functions over resource-use activities
within the waters. Without DAO 17, local governments will remain unable
to carry out the burdensome responsibilities for managing municipal waters,
which Congress imposed on them under the Fisheries Code of 1998.
Fact #5: It is the Fisheries Code’s
intent to protect the least advantaged coastal stakeholders
Ultimately, we have to keep in mind the primary purpose of municipal
waters: to reserve our coastal waters and resources for the use of millions
of our marginalized countrymen who live in the coastal communities. Our
coastal communities, who number in the thousands and include millions
of poor and marginalized people, directly depend on the fishery resources
within our municipal waters for their subsistence. It is in their interest
that these municipal waters are clearly delineated. Enabling the law on
municipal waters empowers them to take a direct and active role in the
management and use of these waters, and assures that the benefits of all
municipal fisheries and aquatic resources will go directly to those who
most need them.
Some burning questions for Congress
Does the Committee Resolution of September 21, 2000 manifest the House
of Representatives’ collegial position on DAO 17? If so, it is highly
ironic that the legality of the very means to implement the Local Government
Code of 1991 and the 1998 Fisheries Code is now being questioned by Congress,
the same legislative body that enacted the law and gave local governments
the responsibilities for managing municipal waters. Such action only promotes
the idea that Congress either enacts laws that it does not wish to see
implemented, or laws that it does not understand.
Is the resolution even valid? The resolution makes it appear that Congress
has decided to directly interfere with the executive's powers and prerogatives,
and thus directly contravene the many principles that have been enshrined
in our laws, including the Constitution itself. In declaring “the existence
of legal infirmities affecting” DAO 17, it appears to have also usurped
the judiciary’s exclusive power of judicial review.
Whose interests do our congressmen truly represent? The recent action
of the members of the appropriations committee gives us the impression
that Congress intends to sacrifice the interests of our coastal communities
and our local governments, and even our national interests as an archipelagic
nation. It seems our “representatives” have opted to represent the personal
vested interests of a few, instead of showing a genuine and careful respect
for the needs of the majority. They must be reminded that they are as
responsible for the observance of the law as the rest of us. Already,
they have gone beyond the bounds of their legislative duties by preventing
the implementation of a crucial provision of the Fisheries Code, upon
which so much of our country's fisheries and aquatic resources depends.
Congress would be well advised to carefully consider the ramifications
of its actions, because these actions will define the character of its
office. It must be held accountable by all coastal communities, as well
as all local governments, for its interference in programs and policies
intended for their benefit. All non-government organizations, people's
organizations, and local government units must ensure that their interests
are not subordinated and appropriated by the few.
[1] Bachelor of Laws, University
of the Philippines 1991, Master of Marine Management, Dalhousie University
(Canada) 1997. Mr. Batongbacal is a Research Fellow of the UP Archipelagic
and Ocean Studies Program, and currently Executive Director of the Philippine
Center for Marine Affairs, Inc. and a member of the Coastal Resource
Management Network. He is a legal expert in marine policy. His areas
of study have included international maritime boundaries, marine environmental
policy, coastal resource management, and fisheries management.
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