The Online Magazine for Sustainable Seas
June, 1998 Vol. 1 No. 6
Over the many hours that they’d spent in public hearings on the Senate and House bills that would later become Republic Act 8550 or the Philippine Fisheries Code of 1998, members of fisherfolk organizations argued and batted and pushed for a law that would reinforce the Local Government Code’s (LGC) definition of what is called "municipal waters" -- waters under the jurisdiction of the municipal government, not only streams, lakes and tidal waters within the municipality... but also marine waters included between two lines drawn perpendicularly to the general coastline from points where boundaries of the municipality or city touch the sea at low tide and a third line parallel with the general coastline and 15 km from it.
At issue was the small fishers’ exclusive rights to fish this zone, rights that had been blurred somewhat by the existence of an older law, PD 704 (1975), which restricted commercial fishing operations "to waters more than 7 fathoms deep" without mention of the 15-km municipal water zone and a number of other laws (LOI 1328 (1978), FAO 156 (1986), and FAO 164 (1987) that restricted only certain types of commercial fishing methods (commercial trawl, purse seine, modified Danish seine), but not commercial fishing itself, in waters within 7 km from the shoreline. By virtue of these laws, municipal waters, at least according to some interpretations, were not the exclusive domain of small fishers.
In an attempt to clarify the issue, the Department of Agriculture-Bureau of Fisheries and Aquatic Resources (DA-BFAR) declared its official position through several policy statements. In 1991, then Agriculture Secretary Senen Bacani issued a memorandum instructing all licensing units of DA-BFAR to clearly indicate in all commercial fishing boat licenses they issued that such licenses were not valid for fishing operations within municipal waters. Then, in 1993, BFAR Director Guillermo Morales effectively ruled out the possibility of commercial fishing in municipal waters by stating in an inter-office memorandum that, first, the DA-BFAR had no authority to issue commercial fishing boat licenses for operations within municipal waters which, as defined by law, were under the jurisdiction of the local government. And, second, that local governments in turn had no authority to issue permits for commercial fishing boats (over 3 gross tons) to operate within their municipal waters because their authority was limited to the issuance of permits or licenses for boats weighing 3 gross tons or less.
Still, the debate raged on. Should municipal waters be made the exclusive domain of small fishers? And which definition – 7 km or 15 km – should apply? In their proposed policy guidelines On Legislating a New Philippine Fisheries Code, the NGO Technical Working Group for Fisheries Reform and Advocacy noted that "PD 704, also known as the Fisheries Decree of 1975, still prevails as the law regulating fishery policy," but there is "a growing consensus among the small fisherfolk, non-governmental organizations and even government agencies that due to the rapid degradation of fishing grounds ostensibly due to highly extractive commercial operations, the 15-km definition must be adopted" – a position that, understandably, commercial fishers opposed.
Now we have the Philippine Fisheries Code of 1998. It reaffirms the LGC’s definition of the 15-km boundary, but with some qualifications: "The municipal or city government … may, through its local chief executive and acting pursuant to an appropriate ordinance, authorize and permit small and medium commercial fishing vessels to operate within the 10.1 to 15-km area from the shoreline in municipal waters."
This worries leaders of some small fishers’ organizations, who fear the worst: That LGUs would in most cases act in favor of commercial fishers and pass the appropriate ordinance authorizing and permitting commercial fishing in waters that would otherwise be solely for the small fishers’ use. How could LGUs regulate commercial fishing, they ask, when they have not even managed to control dynamite and cyanide fishing in many areas?
or 7: What’s the fuss?
Banning commercial fishing operations within certain distances from the coastline is seen as an effective way of reducing fishing effort (albeit temporarily), competition and conflict in nearshore fishing areas. It will also, said BFAR, redirect fishing effort to deeper, less exploited offshore areas, reduce overall fishing effort, and, to a certain extent, even out the distribution of marine resources among municipal and commercial sectors.
But should it be 15 km or 7 km? A 1985 study cited by BFAR in its 1995 policy brief indicated that there was about one boat available for every two fishers. About 60% of the municipal boats were non-motorized, which meant that majority of municipal fishers were not equipped to venture too far from the shore. So why would small fishers need the 15-km zone when most of them do not seem to have the capability to fish farther than 7 km from the shoreline?
Some say the 15-km boundary is "arbitrary", a delineation that has no solid scientific basis. Others, however, insist that it is a necessary management tool which effectively creates a buffer zone between commercial and municipal fishers as well as a replenishment area for fishery resources -- a "marine sanctuary" of sorts that is off-limits to commercial fishers for legal reasons and to many small fishers for practical reasons. There is no real consensus among experts on how this so-called "buffer zone" will affect the productivity of fishery resources. Some experts say it will have little effect, if at all, because the resources in question are highly migratory; others contend it will increase fish population and lead to an increase in the municipal fishers’ fish catch. What is certain is this: a ban on commercial fishing in municipal waters is an effective way to reduce physical confrontation between municipal and commercial fishers. Indeed, fisheries experts say zonation may be more convincingly defended from the point of view of conflict resolution.
Small fishers who fear "favoritism" can take heart in the fact that the law does not give local governments blanket authority to enact ordinances that favor commercial fishers. There are certain conditions that must be met before local governments can allow small and medium-scale commercial fishing (using boats of up to 150 GT in weight) in the 10.1-15-km zone. First, the area must not be less than 7 fathoms deep. Second, the fishing operations must employ only those methods and gears allowed by national policies. Third, there should be prior consultation through public hearing with the town’s or city’s Fisheries and Aquatic Resources Management Council (FARMC). Fourth, the area must not be among those bays declared by DA as environmentally critical. Fifth, there must be no fishing during closed seasons. And sixth, the applicant vessel as well as the shipowner, employer, captain and crew have been certified "by the appropriate agency" as not having violated the Fisheries Code, environmental laws and other related laws.
No, the new Code is not "anti-small fisherman", insists DA Region-VII Assistant Director Corazon Corrales. In fact, it clearly states that municipal fishers should be given priority "in the preferential use of the municipal waters", and they should be given support by the government "through appropriate technology and research, adequate financing, production, construction of post-harvest facilities, marketing assistance and other services." It appropriates a fund, to be channeled through the local government, that provides incentives for municipal fishers to improve their gears and vessels and engage in fish culture as well as non-fishery projects.
But what if, as fisherfolk organizations keep saying, local governments have other priorities and appropriate the fund to their own pet projects? Even Corrales admits that, on many occasions, BFAR tried to initiate fishery projects but found local officials reluctant to assume responsibility for the projects. Also, despite laws that explicitly prohibit these practices, we continue to hear about the encroachment by commercial fishers into municipal waters and the use of illegal fishing methods -- often by small fishers themselves -- in wide areas of the country, clear signs that local governments have not been sinking their teeth on the enforcement of fishery laws. Indeed, few observers are convinced that the new Code will make any difference as far as protecting small fishers’ rights over municipal waters is concerned. As they rightly point out, local governments do not even have to pass a law allowing commercial fishing in municipal waters -- all they have to do is do nothing, and we will see the same old reprise of the tragedy of our times, of municipal fishers being driven out of their fishing grounds. What then?
The Code does offer avenues for small fishers to secure their rights to their fishing grounds. One such avenue is the so-called FARMC, an advisory and recommendatory body formed by fisherfolk organizations, cooperatives and non-governmental organizations in the locality and assisted by the local government units and other local government entities. The Code is explicit in that, while the government is responsible for the "management, conservation, development, protection, utilization and disposition of all fish and fishery/aquatic resources in their respective municipal waters," it cannot pass any new law without first consulting the FARMC.
With seven municipal fishers sitting in the municipal and city FARMCs compared to three commercial fishers, small fishers outnumber commercial fishers by more than 2 to 1. They thus have -- or should have -- considerable influence on policymaking at the local level. Much depends on how the Code is finally interpreted and implemented by the powers-that-be, but a great deal can be built upon the active participation of the stakeholders themselves, especially the least advantaged sectors, in ensuring that the provisions of the Code are carried out to their full and best intent. It behooves small fishers to help themselves by one, pushing for the organization of the FARMC in their villages and towns or cities; two, qualifying themselves for exclusive fishing privileges in municipal waters by registering with their respective municipal governments; and three, by availing of training opportunities in law enforcement so they can help ensure the just and equitable implementation of the Code. Then, maybe, we would have a happy answer to the question that screams at us at the top of this story. with reports from Ruth Mercado
the Upper Hand
Needing to ensure their livelihood, the fishers were compelled to employ desperate means, such as the use of illegal fishing methods. Marine life in the area was threatened. What’s more, an employment shift from agriculture to fishing was taking place -- facing insurgency and the depletion of land resources, farmers were moving to the coasts, unaware that the fisherfolk themselves were in the middle of a crisis.
Then, in 1994, they were shown a way out. That year, the provincial government initiated the Fishery Development Program (FDP), primarily to improve the living conditions of fishing communities by increasing production and income through the use of sustainable technology and people-based conservation measures. Its main target beneficiaries: fishermen who were totally dependent on fishing for their livelihood, the largest poverty group or marginalized sector in the province. This sector comprised fully 18% of Masbate’s fishing population.
The FDP tackles many problems typical of coastal communities in the Philippines. Besides the encroachment into Masbate waters by commercial fishing vessels from neighboring provinces, it also addresses other issues, including the use of inefficient fishing gears and methods by small fishers, lack of affordable credit facilities, and the inability of local law enforcers to pursue big-time trawls because of inferior and limited facilities. It has adopted a number of strategies, most of them anchored on people and community participation. These include the stricter enforcement of fishing laws and regulations, the rehabilitation of mangroves and coastal areas, people mobilization, community organizing, cooperative development, soft loans and affordable credit for small but high-impact fishery projects, and the use of modern fishing technology and support facilities.
More importantly, the local government has shown its commitment to the Program by allocating 20% of its economic development fund (EDF) to fishery development projects implemented by the Provincial Planning and Development Office (PPDO) and the Office of the Provincial Agriculturist. With money coming from the regular funds of the Office of the Provincial Agriculturist, FDP works with an annual budget amounting to nearly P6 million, which is augmented further by proceeds from administrative fines. To help ensure strict enforcement of the law, the provincial government has devised an incentive scheme that allows the municipal government to keep 25% of the administrative fines they collect for law enforcement activities, and the local apprehending officer to receive another 25% as personal incentive (the remaining 50% is used by the provincial government as FDP operating fund). The province has also intensified the enforcement of fishery laws and ordinances by invoking the powers provided by the 1991 Local Government Code and by imposing strict penalties on acts deemed harmful to the environment. About 180 local residents have been trained and deputized as fish wardens, in the process increasing their level of consciousness regarding their responsibility for the protection of the province’s fishery resources.
The war against poverty, which is seen as the main cause of the rapid degradation of Masbate’s marine resources, rages on all fronts. A Municipal Science and Technical Advisory Program was established by the provincial government with assistance from the Bicol University and the Department of Science and Technology to enhance the technical capabilities of local officials and fishers’ organizations in the preparation of feasibility studies and project proposals. To finance projects of fishers’ cooperatives, the government has also tapped a credit facility of Land Bank which has so far provided soft loans amounting to P4.6 million to 13 fishers’ cooperatives. Two seaweed nurseries and demonstration projects have been established, encouraging profitable ventures into environment-friendly aquaculture enterprises. With assistance from the Department of Agriculture Regional Field Scuba Diving Team, six fish sanctuaries have been identified for protection to help ensure that, even while the government tries to improve the small fishers’ income by helping them increase their catch through the use of more efficient fishing gears, this does not result in the depletion of fishery resources.
Meanwhile, fishers have acquired new boats, nets, gas lamps, paddles and other fishing paraphernalia – already, boat-to-fisherman ratio has improved from 1:4 to 1:2. Advocacy against illegal fishing has also netted some positive results: equipped with new and more efficient gears, fishers, confident that they will bring home more fish, no longer resort to illegal – and often dangerous – methods of fishing. Records indicate a 10% increase in capture fisheries. In addition, 120 fishpond operators have been trained in fishpond operation and management, so far increasing their production from 500 to 1,200 kg per hectare per year.
Masbate still faces many fishery-related problems, including the continued encroachment into its municipal waters of commercial fishing vessels from other provinces. Given its rewarding experience with the FDP, however, the province is more confident than ever of its own capability to solve these problems. How much more it can accomplish now largely depends on the strength of its officials’ political will and the continued participation of its people in the protection of its marine resources.
Issue/Offense: Commercial fishing in municipal waters
Before: Commercial fishing was not allowed within the 15-km municipal waters
After: The municipal or city government may, through its local chief executive and acting pursuant to an appropriate ordinance, authorize or permit small and medium-scale commercial fishing vessels to operate within the 10.1-15 km area (Sec. 18)
Issue/Offense: Municipal fisherfolk fishing in waters beyond their municipal boundaries
Before: There was no national law that prohibited municipal fishers from fishing beyond their municipal boundaries, but the Sangguniang Bayan (Municipal Council) could promulgate rules and regulations regarding the issuance of fishing boat licenses and prohibiting non-resident municipal fishers from fishing in their municipal waters.
Now: The LGU shall maintain a registry of municipal fisherfolk to determine who among them get fishing priority, limit entry into municipal waters, monitor fishing activities, and for other related purposes. In addition, the LGU, in consultation with the FARMCs, shall formulate the necessary mechanisms for inclusion or exclusion of procedures that shall be most beneficial to resident fisherfolk. (Sec. 19)
Issue/Offense: Disposition of public lands for fishery purposes
Before: Public lands suited for fishpond operations shall not be disposed of or alienated.
Now: Public lands suited for fishpond operations shall not be disposed of or alienated. Lands that are declared as available for fishpond development will be turned over to qualified fisherfolk cooperatives/associations. However, upon expiration of existing fishpond lease agreements, the current lessees shall be given priority and be entitled to an extension of 25 years in the utilization of their respective leased areas. (Sec. 45)
Issue/Offense: Leased area for fishponds
Before: For individuals, 50 hectares; for associations and corporations, 500 hectares, with possibility of extending leased area subject to the approval of the Secretary (PD 704).
Now: For individuals, 50 hectares; for corporations or fisherfolk organizations, 250 hectares. (Sec. 45)
Issue/Offense: Establishment of FARMCs
Before: EO 240 recommends the creation of FARMCs in coastal barangays, cities and municipalities. However, in the absence of penal provisions to the contrary, the LGU is not obligated to establish a FARMC.
Now: The establishment of FARMCs is obligatory; FARMCs should be established at the national level and in all municipalities abutting municipal waters; FARMCs shall be formed by fisherfolk organizations/cooperatives and non-governmental organizations in the locality and be assisted by LGUs and other government entities. (Sec. 69)
Issue/Offense: Blast or dynamite fishing
Before: Under PD 704 as amended by PD 1058, the mere possession of explosives was punishable by imprisonment ranging from 12 to 25 years, while fishing with explosives was punishable by 20 years to life imprisonment. If the use of explosives results in physical injury to any person, the penalty was imprisonment from 25 years to life. If it results in the loss of human life, the penalty was life imprisonment to death. Knowingly possessing, dealing in, selling or in any manner disposing of illegally caught or gathered fisheries for profit was punishable by imprisonment of from 5 to 10 years.
Now: Under the Fisheries Code, the possession of dynamite, other explosives and chemical compounds which contain combustible elements is punishable by imprisonment ranging from 6 months to 2 years, while fishing with explosives is punishable by 5-10 years imprisonment, without prejudice to the filing of separate criminal cases when the use of explosives results in physical injury or loss of human life. Dealing in, selling or in any manner disposing of illegally caught or gathered fisheries for profit is punishable by 6 months to 2 years imprisonment -- while the penalty is reduced, ignorance of fish condition is no longer acceptable as an alibi. In addition, fishing vessels, fishing equipment and catch shall be forfeited.
Issue/Offense: Cyanide fishing
Before: Fishing with noxious or poisonous substances was punishable by 8-10 years imprisonment; if the use of substance results in physical injury to any person, the penalty shall be imprisonment from 10 to 12 years; if it results in loss of human life, the penalty shall be 20-years or life imprisonment, or death. Knowingly possessing, dealing in, selling or in any manner disposing of illegally caught or gathered fisheries for profit was punishable by imprisonment of 5-10 years.
Now: The possession of .noxious or poisonous substances such as sodium cyanide is publishable by imprisonment of 6 months to 2 years. Fishing with noxious or poisonous substances is punishable by 5-10 years imprisonment without prejudice to the filing of separate criminal cases when the use results in physical injury or loss of human life. Dealing in, selling or in any manner disposing of illegally caught or gathered fisheries for profit is punishable by imprisonment of 6 months to 2 years; as additional penalty, fishing vessels, fishing equipment and catch shall be forfeited.
Before: Electrofishing is punishable by imprisonment ranging from 2 to 4 years.
Now: Possession of equipment or device for electrofishing is punishable by imprisonment ranging from 6 months to 2 years. The act of electrofishing itself is subject to a penalty of 5-10 years imprisonment without prejudice to the filing of separate criminal cases when the use of electrofishing device results in physical injury or loss of human life. Dealing in, selling, or in any manner disposing of illegally caught or gathered fisheries is punishable by 6 months to 2 years imprisonment; in addition, fishing vessels, fishing equipment and catch shall be forfeited.
Issue/Offense: Use of fine mesh nets
Before: Under FAO 155 (1986), the use of fine mesh nets was subject to a fine of not less than P500 but not more than P5,000, or imprisonment of 6 months to 4 years, or both. In addition, the Director of the Bureau of Fisheries and Aquatic Resources (BFAR) was empowered to impose on the offender an administrative fine of not more than P5,000 and confiscate fishing equipment and catch.
Now: The use of fine mesh nets is subject to a fine of P2,000-20,000, or a penalty of 6 months to 2 years imprisonment, or both. If the offense is committed by a commercial fishing vessel, the penalty and/or fine shall be imposed upon the boat captain and the master fisherman, as well as the owner/operator of the commercial fishing vessel. The Department of Agriculture through the Director of BFAR shall be empowered to impose upon the offender an administrative fine and/or cancel his permit or license or both.
Issue/Offense: Export of milkfish fry
Before: Section 36 of PD 704 provided for a penalty of 1-5 years imprisonment, or a fine of P1,000-5,000, or both.
Now: The export of milkfish fry is subject to a penalty of 8 years imprisonment; confiscation of the breeders, spawners, eggs or fry, or a fine equivalent to twice the value of these products; and revocation of the fishing and/or export license/permit.
Issue/Offense: Fishing in Philippine waters with the use of muro ami (drive-in nets), kayakas, scareline or serosca
Before: Under FAO 163 (1996), the use of drive-in nets, kayakas, scareline or serosca was subject to a penalty of 6 months to 4 years imprisonment, or a fine of P500-5,000 or both.
Now: The use of drive-in nets, kayakas, scareline or serosca is subject to a fine of P100,000-500,000, or a penalty of 1-10 years imprisonment, or both. Such penalty and/or fine shall be imposed upon the boat captain and the master fisherman, as well as the owner/operator of the fishing vessel. The catch and gear used shall be confiscated.
Issue/Offense: Operation of trawls and purse seine
Before: Under FAO 156 (1986), the operation of trawls and purse seine within 7 km from the shoreline of all provinces was subject to a fine of not less than P500 but not more than P5,000, or imprisonment of 6 months to 4 years, or both. In addition, the Director of the Bureau of Fisheries and Aquatic Resources (BFAR) was empowered to impose on the offender an administrative fine of not more than P5,000 and confiscate fishing equipment and catch.
Now: The boat captain and master fisherman of the vessel using active (moving) gears such as trawl, purse seine, bag net, Danish seine, paaling, drift gill net, tuna longline, and other fishing devices characterized by gear movements and/or pursuit of target species are subject to 2-6 years imprisonment. The owner/operator of the vessel shall be fined P2,000-20,000. If the owner/operator is a corporation, the penalty shall be imposed on the chief executive officer of the corporation; if the owner/operator is a partnership, it shall be imposed on the managing partner. The catch shall be confiscated.
--Compiled by Annabelle Cruz-Trinidad, Policy Advisor, CRMP; Leo Pura, Policy Research Assistant, CRMP; and Pol Zara of the Office of Senator Leticia Shahani
PHOTOS BY RUPERT SIEVERT.
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