OSG to BFAR, NTC: 'Obey trial court ruling vs installation of monitor system in fishing vessels'

The Office of the Solicitor General (OSG) has ruled that the Bureau of Fisheries and Aquatic Resources (BFAR) and the National Telecommunications Commission (NTC) cannot implement an order that requires fishing vessels to install Integrated Marine Environment Monitoring System (IMEMS) because of the trial court’s ruling that declared the order unconstitutional.

In a legal opinion sought by BFAR and NTC, the OSG said that the Malabon City regional trial court (RTC) issued on June 1, 2021 a decision that declared the 2020 Fisheries Administrative Order (FAO) No. 266 as unconstitutional for violating the provisions of the Fisheries Code.

With the decision, the OSG said the RTC issued a writ of permanent injunction that prevents the enforcement of FAO 266.

“By its, nature, a writ of injunction, whether preliminary or final, shall be immediately executory for the preservation of rights of the applicant,” it stated.

It also pointed out that the writ of permanent injunction “must be applied not only to the parties of the case but must be uniformly applied to all similarly situated entities affected by FAO 266.”

“This is a a necessary consequence of the RTC’s ruling on the unconstitutionality of FAO 266, which is not only limited to parties but to all individuals or entities affected thereby,” it explained.

The BFAR and NTC sought the OSG’s legal opinion following a consultative meeting with stakeholders on the status FAO 266 considering that the two agencies filed a petition for review on the RTC’s decision but remains pending before the Supreme Court (SC).

“The OSG maintains that the assailed Decision, particularly the ruling on the unconstitutionality of FAO 266, has yet to attain finality in view of the pendency of its Petition for Review before the Supreme Court,” the OSG stressed.

“However, given that the RTC made permanent the preliminary injunction issued by it, and unless the Supreme Court issues any injunctive writ to enjoin the enforcement of the same, the OSG is of the opinion that BFAR and NTC should desist from implementing FAO 266,” it said.

It reminded that the Constitution “vests the power to declare statute, presidential decree or executive order not only to the Supreme Court but in all RTCs.”

“The Supreme Court recognizes the authority and jurisdiction of the RTC to rule on the constitutionality of a statute, and on the validity or constitutionality of a rule or regulation issued by administrative agencies, as in this case,” it added.

FAO 266 was issued in 2020. The order prohibits “all commercial catcher fishing vessels operating in Philippine waters and all fishing vessels in distant waters from engaging in fishing activity without VVM (vessel monitoring measures)” and that “Electronic Reporting System (ERC) shall be used to record and report catch data for all vessels subject to VVM.”

The order was reportedly aimed at intensifying the campaign against illegal, unreported and unregulated fishing.

Several owners of commercial deep-sea fishing vessels filed a petition before the Malabon City RTC challenging the constitutionality of FAO 266.

They said that the information to be recorded and reported via ERS -- like position of the vessel where the fish was caught, date and time and vessel activity -- are sensitive information and part of their trade secrets and proprietary information.

“The recording and reporting of petitioners’ trade secrets not only violate their privacy, but also expose them to suffer tremendous losses,” they also said.

Also, they said that the requirement for commercial fishing vessel to be equipped with VMS or vessel monitoring system violates their constitutional right against unlawful searches.

On June 1, 2021, the RTC declared FAO 266 unconstitutional.

In its decision, the RTC declared:

“The instant petition is granted. Fisheries Administrative Order No. 266 Series of 2020 (FAO 266) is declared null and void for being unconstitutional and thus ultra vires, illegal, void and contrary to the provision of RA 8550, as amended.

“Consequently, all memoranda, orders and other issuances to public respondents’ regional offices and other government agencies issued pursuant to or in implementing FAO 266 are declared null and void.”