The Bureau of Fisheries and Aquatic Resources (BFAR) is urging Justice Secretary Leila de Lima to reverse the decision of her predecessor to junk a case against nine foreigners caught fishing and in possession of endangered marine turtles off Balabac Island in Palawan last May.

BFAR Director Malcolm Sarmiento Jr. said the agency, together with the Palawan Council for Sustainable Development Staff (PCSDS), had filed with the Department of Justice a motion for reconsideration on former Justice Secretary Alberto Agra’s decision to dismiss the case against the suspected poachers.

Agra issued the resolution dismissing the case on June 29, 2010.

The case involves Chinese nationals caught fishing and in possession of endangered marine turtles in May off Balabac Island in Palawan by the Philippine Coast Guard and the BFAR.

The BFAR, PCG, and the Department of Environment and Natural Resources (DENR) filed a criminal complaint against the Chinese nationals at the Palawan Provincial Prosecutors Office for poaching in Philippine waters, taking of rare, threatened or endangered species, for killing and destroying wildlife species, and collecting, hunting or possessing wildlife, their by-products and derivatives.

The BFAR said Carmelina Guevarra, Palawan associate provincial prosecutor, found sufficient evidence to indict the respondents for violation of Section 87 of RA 8550 and Section 27(f) of RA 9147 or the Wildlife Act of the Philippines.

However, a resolution dated June 29, 2010 penned by Agra granted the petition for review by lawyers of the Chinese nationals and directed the Provincial Prosecutor of Palawan to withdraw the information filed against the respondents “for lack of criminal intent, a necessary element in cases of mala en se or crimes that are inherently immoral.”

In his decision, Agra cited that criminal intent must be clearly established with the other elements of the crime, otherwise no crime is committed.

“Considering that criminal intent should concur with the elements of Section 87 of RA 8550, we find that there is no probable cause to hold the respondents for violation thereof,” Agra said Sarmiento said that the Agra’s resolution, if not withdrawn, would have serious implications since the respondents claimed they were in Chinese territorial waters, when it was clearly established and, in fact, admitted by them that they were in coordinates that were only 50 miles west of Balabac, Palawan.

“The DoJ decision might be used by future violators as a dangerous precedent,” Sarmiento said.

In filing the motion for reconsideration, BFAR and PCG cite the following grounds: The resolution failed to consider that RA 8550, otherwise known as “The Philippine Fisheries Code,” is a special law enacted to regulate fishing in Philippine waters.

“Thus, violation of its provisions shall be considered mala prohibita or acts that are punishable only because they are prohibited by law and not mala en se or acts that are inherently immoral,” they said.

“The resolution erroneously took, hook, line and sinker, respondents’ claim that the place of apprehension is not within the territorial sea of the Philippines, when such issue can be properly ventilated during a full-blown trial as it is evidentiary in nature,” BFAR and PCG added.

They said that there was deprivation of the right to due process of the complainants because they were not given a chance to file a comment to the petition for review filed by the respondents.